Mental Capacity Legislation Research Articles

Mental health and capacity laws in Northern Ireland: examining the position of children and young people.

Mental health and capacity laws applicable to children and young people in Northern Ireland (NI) lack clarity and coherence, with significant gaps in service provision and safeguarding. Drawing on an examination of such laws, we argue that law reform is needed. In the short term, we suggest there is merit in publishing statutory guidance, such as a Code of Practice, to address both the issue of evolving capacity in children and to facilitate best practice in policy and practice. This modest reform in the short term should be accompanied by a firm political commitment to ensuring that NI's innovative fusion mental capacity legislation is fully brought into force in the medium term. Meanwhile, law reform should form part of a holistic approach on the part of NI's policy-makers towards improving mental healthcare provision for children and young people in line with a human rights-based approach. This would include the following: increased allocation of funding and resources to facilitate more timely access to suitable treatment and related services; enhancing participation in policy, judicial, and clinical decision-making that impacts their lives; and employing a range of executive accountability mechanisms to drive improvements in such provision over time.

Anticipatory declarations in obstetric care: a relational and spatial examination of patient empowerment, institutional impacts and temporal challenges.

Seeking an anticipatory declaration from the Court of Protection (CoP) to manage a risk of future loss of capacity in pregnant people during labour and delivery appears to be occurring more frequently. This article examines a growing case sample of recent CoP judgments in which anticipatory declarations have been sought and adopts a combined relational and spatial approach to question whether these types of anticipatory declarations empower patient autonomous choice, and to illuminate the complex web of relational, spatial, and temporal factors that hold influence over the way in which mental capacity law operates. Viewing such processes from both a patient and institutional perspective offers useful insights into the law's normative workings, boundaries, and constraints, and ultimately points to conclusions on the (in)effectiveness of anticipatory declarations as a legal mechanism for dealing with the risk of a patient losing capacity in the future. Moreover, however, taking a broader, spatial view signals the challenges posed by these cases to mental capacity legislation itself. The justifiability of the binary construct of capacity/incapacity has been challenged by some writers in this field, and this article offers further reflection on the integrity of this binary through its discussion of anticipatory orders for pregnant people.

The CRPD and mental health law reform in Scotland

Scotland's mental health and capacity legislation and its implementation is underpinned by European Convention on Human Rights (ECHR) informed principles, and such legislation and its implementation has remained largely ECHR compliant. It is designed to protect individuals' autonomy from inappropriate and disproportionate nonconsensual intrusions but its scope is largely limited to this. However, since the legislation was enacted at the start of the twenty first century the UK subsequently ratified the UN Convention on the Rights of Persons with Disabilities (CRPD) which requires the law and related practice to focus on giving effect to all the rights of persons with mental disabilities (people living with psychosocial, cognitive and intellectual disabilities) on an equal basis with others and to actively support such equality in rights enjoyment.The Terms of Reference of the independent Scottish Mental Health Law Review (2019–2022) included considering and making recommendations to align Scotland's mental health and capacity legislation with the CRPD. After engaging widely with stakeholders its recommendations sought to strengthen the voice of persons who use services and of those who care for them, reduce the need for non-consensual measures and secure rights to the help and support necessary to live a good life. In order to achieve this, it recommended, amongst other things, a refocusing on mental health and capacity law together with a Human Rights Enablement, Supported Decision Making and Autonomous Decision Making framework.

Artificial intelligence and mental capacity legislation: Opening Pandora's modem

People with impaired decision-making capacity enjoy the same rights to access technology as people with full capacity. Our paper looks at realising this right in the specific contexts of artificial intelligence (AI) and mental capacity legislation. Ireland's Assisted Decision-Making (Capacity) Act, 2015 commenced in April 2023 and refers to ‘assistive technology’ within its ‘communication’ criterion for capacity. We explore the potential benefits and risks of AI in assisting communication under this legislation and seek to identify principles or lessons which might be applicable in other jurisdictions. We focus especially on Ireland's provisions for advance healthcare directives because previous research demonstrates that common barriers to advance care planning include (i) lack of knowledge and skills, (ii) fear of starting conversations about advance care planning, and (iii) lack of time. We hypothesise that these barriers might be overcome, at least in part, by using generative AI which is already freely available worldwide. Bodies such as the United Nations have produced guidance about ethical use of AI and these guide our analysis. One of the ethical risks in the current context is that AI would reach beyond communication and start to influence the content of decisions, especially among people with impaired decision-making capacity. For example, when we asked one AI model to ‘Make me an advance healthcare directive’, its initial response did not explicitly suggest content for the directive, but it did suggest topics that might be included, which could be seen as setting an agenda. One possibility for circumventing this and other shortcomings, such as concerns around accuracy of information, is to look to foundational models of AI. With their capabilities to be trained and fine-tuned to downstream tasks, purpose-designed AI models could be adapted to provide education about capacity legislation, facilitate patient and staff interaction, and allow interactive updates by healthcare professionals. These measures could optimise the benefits of AI and minimise risks. Similar efforts have been made to use AI more responsibly in healthcare by training large language models to answer healthcare questions more safely and accurately. We highlight the need for open discussion about optimising the potential of AI while minimising risks in this population.

The United Nations Convention on the Rights of Persons with Disabilities and Social Work: Evidence for Impact?

The United Nations Convention on the Rights of Persons with Disabilities (hereafter CRPD) has provided a radical imperative for the reform of mental health and capacity legislation around the world. The interpretation of the CRPD has been controversial, ranging from the complete abolition of detention, forcible treatment, and substitute decision-making to accepting that elements of these measures need to be retained based on non-discriminatory criteria, additional safeguards, and a comprehensive shift towards supported decision-making. While the potential effects of the CRPD on mental health social work and social work generally are considerable given their shared commitment towards social justice, to date there has been no review of research evidence exploring their relationship. In addressing this knowledge gap, this study held a preliminary discussion with practitioners and academics at the European Association of Social Work Mental Health Special Interest Group in Amsterdam 2022, followed by a scoping literature review on the question: What impact, if any, has the CRPD had on social work practice? The review produced four main findings: impact on legislation; positive impact on practice; limited impact on practice; and impact on social work education and research. In sum, while there were some positive indications of social work and mental health social work practice being influenced by the CRPD, these were scant. Barriers to change included tendencies among some social workers to practise substitute decision-making, in part related to resourcing and policy contexts, and understandings of disability aligned to individualised/medical rather than social perspectives. The results indicate that legal reform on its own is insufficient to impact social work practice, and that realising the potential of the CRPD will necessitate good quality training, as well as improving social workers' knowledge of the human rights of people with mental impairment.

Comparative analysis of mental capacity legislation within the Indian Mental Healthcare Act 2017 with the devolved nations of the United Kingdom.

Comparative analysis of mental capacity legislation within the Indian Mental Healthcare Act 2017 with the devolved nations of the United Kingdom.

Implementation of the Mental Capacity Act (Northern Ireland) 2016: Social workers’ experiences

The Mental Capacity Act (Northern Ireland) 2016 was enacted by the Northern Ireland Assembly in May 2016. The first phase of the Act came into operation during 2019 and includes provisions for Deprivation of Liberty Safeguards (DoLS). When fully implemented this legislation will integrate mental capacity and mental health legislation into a single piece of legislation, for people aged 16 years and over. Given the recent introduction of Trust Panels as a new mechanism for DoLS, this study is the first of its kind. This small-scale exploratory study is a survey of 33 social workers who have made DoLS applications to Trust Panels. The findings illustrate social workers’ experiences of applying for Trust Panel authorisation for interventions amounting to deprivation for liberty with adults who lack the capacity to make the relevant decisions.
 The findings report on the social workers’ level of experience in undertaking applications, their views about training for Mental Capacity Act work, and their perceived confidence levels for this work. The factors that have helped or hindered practitioners are also highlighted. The data collection was undertaken during the COVID-19 pandemic, and the impact of changes to work practices during this time are acknowledged. The study makes recommendations for further developing training, practice, and research.

Mental capacity legislation and communication disability: A cross-sectional survey exploring the impact of the COVID-19 pandemic on the provision of specialist decision-making support by UK SLTs.

Mental capacity legislation in the UK is designed to safeguard the rights of people who may need support, or may be unable, to make autonomous decisions. Very limited evidence has been published about the impact of the COVID-19 pandemic on the application of mental capacity legislation and, to our knowledge, none on the ability of speech and language therapists (SLTs) to support people with communication disabilities to engage in decision-making. To describe how UK SLTs supported people with communication disabilities to make decisions and participate in mental capacity assessments, best interests decision-making and advance care planning during the COVID-19 pandemic. This descriptive, cross-sectional study used an online survey to collect quantitative and qualitative data about SLTs' practice experiences between August and November 2020. SLTs working with a range of adult clinical populations in different care settings were sampled purposively from all UK jurisdictions. Participants were recruited through professional networks and social media. Quantitative data were summarized using descriptive statistics. Qualitative data were analysed thematically. Data were collected from 107 SLTs working in a range of settings across all four UK nations. The sample included SLTs working with people with neurological conditions, learning disabilities, mental health conditions and acute confusion. The need for SLT support appeared to increase during the pandemic. Most respondents were still able to offer support; however, the amount and nature of support varied. Quality of support was impacted by adjustments associated with social distancing and infection control restrictions. Personal protective equipment (PPE) was identified as a barrier to communication. Indirect working methods (e.g., telehealth) were inaccessible to some people with communication disabilities. Most respondents felt confident that legal requirements were upheld, but suggested this group was less able to engage in decision-making and had reduced access to support to manage their own health conditions. Some SLT services were limited in their ability to meet the decision-making support needs of people with communication disabilities during the COVID-19 pandemic due to structural and systemic barriers. This suggests that existing inequities in the provision of care for people with communication disabilities in the UK were amplified during the pandemic. What is already known on the subject People with communication disabilities may require support from healthcare professionals, including SLTs, to make decisions and communicate their wishes and preferences about their care, in line with mental capacity legislation. There is a lack of published evidence relating to how changes in staff deployment and resource during the COVID-19 pandemic may have impacted on the ability of SLTs to provide this support. What this paper adds to existing knowledge This study provides novel evidence about the ways in which UK SLTs supported people with communication disabilities to engage in mental capacity assessments, best interests decision-making and advance care planning during the COVID-19 pandemic. In some cases, the amount and quality of decision-making support available was affected negatively due to changes in healthcare delivery and resource management and SLT working practices. What are the potential or actual clinical implications of this work? This study suggests that some people with communication disabilities experienced greater barriers to receiving professional support to maximize their autonomy and manage their health conditions during the COVID-19 pandemic. Speech and language therapy services and healthcare commissioners should consider how best to ensure equitable service delivery to this population in resource-limited situations.

Disability Law in a Pandemic: The Temporal Folds of Medico-legal Violence

Disabled people are subject to disability laws – such as guardianship, mental health and mental capacity legislation – which only apply to them, and which enable legal violence on the basis of disability (‘disability-specific lawful violence’). While public health laws during the COVID-19 pandemic enabled coercive interventions in the general population, disabled people have additionally been subject to the continued, and at times intensified, operation of disability laws and their lawful violence. In this article we engage with scholarship on law, temporality and disability to explore the amplification of disability-specific lawful violence during the pandemic. We show how this amplification has been made possible through the folding of longstanding assumptions about disabled people – as at risk of police contact; as vulnerable, unhealthy and contaminating – into the immediate crisis of the pandemic; ignoring structural drivers of oppression, and responsibilising disabled people for their circumstances and the violence they experience.

Learning capacity- How professionals learn about mental capacity on post qualifying education programmes

The focus of this paper is the way in which learning on a post graduate professional academic training module is developed and articulated via processes of shadowing and the production of two assignments (a written case study and a reflective piece). The context is learning about key aspects of Mental Capacity legislation and the data for the study came from work submitted by fifty students on four successive iterations of a 'best interests assessor' (BIA) training course in England. We sought evidence of the use of key elements including specific sections of the Mental Capacity Act 2005 (MCA) as well as case law; professional values; practice guidance; and classroom education. Moreover we were interested in the ways in which a brief shadowing of a practicing BIA helped to make sense of these disparate elements in practice. Practice guidanc from expert bodies such as SCIE and NICE, the formal legal test of capacity, and certain relevant pieces of case law were not referred to as much as expected, but most candidates showed the ability to deftly navigate the tensions and challenges which arise when trying to meld case law, statute law, codes of practice, and classroom learning and ensure that this is used to safeguard the rights of vulnerable adults.

The Impact of Dementia on Oral Health and Dental Care, Part 2: Approaching and Planning Treatment.

Dementia has been described as the biggest health and social care challenge of this century; its impact on dental care cannot be ignored. Dementia affects cognitive ability and decision making, so it is important that oral healthcare professionals are conversant with current mental capacity legislation and issues that may be raised when treatment planning for patients living with the condition. This second article in the series considers the impact of dementia on dental care provision and covers a range of issues which are relevant to both general and specialist practice. These include assessment of capacity, use of different treatment modalities, such as sedation and general anaesthesia, and the factors that may be relevant when deciding to offer treatment or to refer to a secondary care setting for dental treatment. Advanced care planning is detailed to support general dental practitioners considering the longer-term wishes of their patients with an early diagnosis of dementia.

Behind the cloak of competence: brain injury and mental capacity legislation

PurposeBrain Injury Case Managers (BICMs) work closely with individuals with Acquired Brain Injury (ABI), assessing needs, structuring rehabilitation interventions and providing support, and have significant experience of clients with impairments to decision making. The purpose of this paper is to explore the application of the Mental Capacity Act (MCA) and its guidance when applied to ABI survivors. This research aimed to: first, highlight potential conflicts or tensions that application of the MCA might pose, and second, identify approaches to mitigate the problems of the MCA and capacity assessments with ABI survivors. It is hoped that this will support improvements in the services offered.Design/methodology/approachUsing a mixed method approach, 93 BICMs responded to an online questionnaire about decision making following ABI. Of these, 12 BICMs agreed to take part in a follow-up semi-structured telephone interview.FindingsThe data revealed four main themes: disagreements with other professionals, hidden disabilities, vulnerability in the community and implementation of the MCA and capacity assessments.Practical implicationsThe findings highlight the need for changes to the way mental capacity assessments are conducted and the need for training for professionals in the hidden effects of ABI.Originality/valueLimited research exists on potential limitations of the application of the MCA for individuals with an ABI. This paper provides much needed research on the difficulties surrounding mental capacity and ABI.

Convergence or Divergence? Comparing Mental Capacity Assessments Based on Legal and Clinical Criteria in Medical and Surgical Inpatients

Despite the high prevalence of mental incapacity for treatment decisions in hospitals (27.7%), there is little information about the relationship, if any, between mental capacity assessments based on clinical and legal criteria. We performed a cross-sectional study of mental incapacity for treatment decisions in 300 hospital inpatients in two hospitals in Ireland, using the MacArthur Competence Assessment Tool for Treatment (MacCAT-T) and the legal definition of mental incapacity in Ireland’s incoming Assisted Decision-Making (Capacity) Act 2015. We found that patients who lacked mental capacity according to the legal criteria scored significantly lower on all four subscales of the MacCAT-T (Understanding, Appreciation, Reasoning, and Communication) compared to those who had mental capacity according to the legal criteria. In light of the similarity between Ireland’s legal definition of mental incapacity and legislative definitions in other jurisdictions (e.g. England and Wales), we conclude that legal assessments of mental incapacity in these countries accord closely with clinical assessments (as reflected in the MacCAT-T). Ireland’s new mental capacity legislation should be implemented promptly in order to further operationalize Ireland’s new legal definition of mental incapacity and provide patients with the supports they need to optimize their mental capacity for treatment decisions in hospitals.

Mental Capacity Legislation: Principles and Practice. Edited by Rebecca Jacob, Michael Gunn and Anthony Holland RCPsych Publications2017, £25, hb, 128 pp. ISBN: 978-1909726000

Mental Capacity Legislation: Principles and Practice. Edited by Rebecca Jacob, Michael Gunn and Anthony Holland RCPsych Publications2017, £25, hb, 128 pp. ISBN: 978-1909726000

Mental capacity legislation and its impact on parents with learning difficulties involved in childcare and family law proceedings assessments in England and Wales

Purpose The purpose of this paper is to consider the impact of mental capacity legislation when applied to parents with learning difficulties who lack capacity within childcare and family law proceedings in England and Wales. Design/methodology/approach The paper relies on a range of material including reports published by independent mental health foundations, official inquiries and other public bodies. It also refers to academic and practitioner material in journals and government guidance. Findings The paper critically reviews the application of the guidance when assessing mental capacity legislation as applied in England and Wales and offers by way of illustration several case examples where psychological assessments, and the enhancement of capacity, have assisted parents who were involved in childcare and family law proceedings. Research limitations/implications There has been little published research or governmental reports on the number of cases when parents involved in childcare and family law proceedings have been found to lack capacity. No published prevalence data are available on the times when enhancing capacity has resulted in a change of outcome in childcare and family law proceedings. Practical implications The duty is on the mental health practitioners assessing mental capacity that they do so in a structured and supportive role adhering to good practice guidance and follow the guiding principles of mental capacity legislation assuming that the individual has capacity unless it is established that they lack capacity. Guidance and training is needed to ensure that the interpretation of the Mental Capacity Act (MCA) and its application is applied consistently. Social implications For those who are considered to lack mental capacity to make specific decisions, particularly within childcare and family law proceedings, safeguards are in place to better support such individuals and enhance their capacity in order that they can participate more fully in proceedings. Originality/value While the MCA legislation has now been enacted for over ten years, there is very little analysis of the implications of capacity assessments on parents involved in childcare and family law proceedings. This paper presents an overview and, in places, a critical analysis of the new safeguarding duties of mental health practitioners when assessing for, and enhancing capacity in parents.

Mental capacity legislation in the UK: systematic review of the experiences of adults lacking capacity and their carers.

Aims and method Capacity legislation in the UK allows substitute decision-making for adults lacking capacity. Research has explored the experiences of such adults and their carers in relation to the Adults with Incapacity (Scotland) Act 2000, and the Mental Capacity Act 2005 in England and Wales. A systematic review of the relevant research was performed using a framework method.Results The legislation provided mechanisms for substitute decision-making which were seen as useful, but there were negative experiences. Decision-making did not always seem to follow the legislative principles. Awareness of the legislation was limited. Most research was qualitative and some was of low methodological quality. Data were too heterogeneous to allow comparisons between English and Scottish law.Clinical implications Capacity legislation was generally viewed positively. However, some experiences were perceived negatively, and the potential benefits of the legislation were not always utilised.

Mental health simulation training in psychiatric skills for police and ambulance service personnel

IntroductionUK healthcare policy has highlighted a shift in mental health services from hospital to community, stressing the importance of training for professions not traditionally associated with healthcare. Recommendations have been made to introduce training for the police force designed with experts. Similarly, the value of further training for ambulance clinicians in assessing mental health, capacity, and understanding legislation has been highlighted.AimsTo investigate the effect of simulation training on the confidence, knowledge, and human factors skills of police and ambulance service personnel in working with people experiencing mental health conditions.MethodsOn completion of data collection from 14 training courses, approximately 90 police and 90 ambulance personnel (n = 180) will have completed the human factors skills for healthcare instrument, confidence and knowledge self-report measures, and post-course qualitative evaluation forms. A version of the hfshi for non-clinical professions will hopefully be validated following data collection. Results will also be compared by profession.ResultsAnalyses have not been fully completed, although preliminary statistical analyses demonstrate promising findings, with increases post-course for human factors skills, confidence and knowledge. Furthermore, qualitative feedback initially illustrates valuable learning outcomes and interesting findings from comparisons by professions.ConclusionsMental health simulation training appears to have a promising impact on the confidence, knowledge, and human factors skills of police and ambulance personnel for working with people experiencing mental health conditions.Disclosure of interestThe authors have not supplied their declaration of competing interest.

The Impact and Application of Mental Capacity Legislation in Care and Family Proceedings

This paper focuses on the introduction of the mental capacity legislation and in particular its application to care and family proceedings in the UK. It reviews challenges with regards to its implementation, noting serious shortfalls in its use even a decade after the mental capacity act was introduced. Guidance is provided within the paper with regard to maximizing capacity and involvement of individuals in care proceedings where these issues have been raised. Case examples are also used to clarify and to contextualize these matters.

Neglecting justice? Exploring Scottish convictions for ill-treatment and wilful neglect

Purpose – The purpose of this paper is to explore the perceived low number of Scottish criminal convictions in cases of ill-treatment or wilful neglect of adults where the victims experienced mental disorder, and/or incapacity. Human rights and anti-discrimination legislation are drawn upon to consider whether victims are gaining equality of access to justice through the charging and conviction of those who commit these offences. Design/methodology/approach – The paper uses the concept of parity of participation to first set out the wider legal framework in which access of justice takes place and to try to determine how it may be working in practice. Second the paper explores Scottish guidance, research and case law in relation ill-treatment or wilful neglect to evaluate the seeming lack of progress towards criminal convictions. Findings – Whilst the legal framework, at least on paper, appears to promote equality of access to justice, little is known about how it is working in practice; in particular whether cultural barriers to participation are being addressed. Evaluation of Scottish statistical data on cases of ill-treatment and wilful neglect revealed a small number of cases progressing to court though there were challenges in constructing a pathway from charges to convictions. There also appeared to be no Scottish legal opinions published in connection with these cases. In addition lack of research means that little is known about why cases progress, and how victims might be being supported through the process. Research limitations/implications – It is suggested that these gaps in information, in comparison to England and Wales, might be hindering practice. In particular the apparent lack of operational definitions for ill-treatment and wilful neglect in Scotland may reduce the use of this type of criminal offence. As such criminal offences embedded within civil mental health and mental capacity legislation may currently be hidden in plain sight. The human rights consequences of the issues raised in this paper are argued as significant. Research is needed to fill these gaps and inform future guidance and training. Practical implications – Improved Scottish guidance and publicity of this issue is required. Local inter-agency discussions and training could develop a better understanding of how these offences have been defined and how disabled people might be supported through the legal processes. The Scottish publication of statistical information for charging and convictions might usefully record these offences separately to give them a greater public profile in the future. Originality/value – This paper highlights the dearth of publicly available information on the number and nature of Scottish prosecutions for ill-treatment or wilful neglect. It suggest ways in how this might be addressed.

Best interests, mental capacity legislation and the UN Convention on the Rights of Persons with Disabilities

Summary‘Best interests' is a key principle of the Mental Capacity Act 2005 (England and Wales), Mental Capacity Bill (2014) (Northern Ireland) and Mental Health Act 2001 (Ireland), although there are currently proposals to remove ‘best interests' from Irish legislation. Legislation in Scotland refers to ‘benefit’ resulting from interventions. Judicious use of ‘best interests', in line with guidelines that prioritise the person's autonomy, will and preferences, is a powerful way to promote the values and rights that underpin the United Nations Convention on the Rights of Persons with Disabilities and to safeguard the dignity of individuals with mental disorder and/or reduced mental capacity.