Presumption Of Capacity Research Articles

Mental capacity assessment in the multi-professional real world: a qualitative study of six areas of uncertainty.

The Mental Capacity Act 2005 of England and Wales is a ground-breaking piece of legislation with reach into healthcare, social care and legal settings. Professionals have needed to develop skills to assess mental capacity and handle malign influence, but it is unclear how assessments are implemented in real world settings. Our previously reported survey found professionals juggling competing resources in complex systems, often struggling to stay up to date with law.The current follow-up study uses one-to-one interviews of professionals to characterise in detail six areas of uncertainty faced when assessing mental capacity, whilst suggesting ways to make improvements. Forty-four healthcare, social care and legal professionals were interviewed, using a semi-structured topic guide. Transcripts were analysed using framework analysis: a qualitative technique built to investigate healthcare policy. Our topic guide generated 21 themes. In relation to the six areas of uncertainty: 1) Many participants stressed the importance of capturing a holistic view, adding that their own profession was best-placed for this - although a medical diagnosis was often needed. 2) The presumption of capacity was a laudable aim, though not always easy to operationalise and occasionally being open to abuse. 3) There was cautious interest in psychometric testing, providing a cognitive context for decisions. 4) Undue influence was infrequent, but remained under-emphasised in training. 5) Multi-professional assessments were common, despite doubts about fitting these within local resources and the law. 6) Remote assessment was generally acceptable, if inadequate for identifying coercion. Practical constraints and competing demands were reported by professionals working within real world systems. Assessment processes must be versatile, equally applicable in routine and emergency settings, across diverse decisional types, for both generalist and specialist assessors, and able to handle coercion. Recognising these challenges will guide development of best practices in assessment and associated policy.

Psychologists' perspectives on supported decision making in Ireland.

A new legal capacity act was introduced in Ireland in 2015. This study aimed to identify and critically examine key issues in the area of decision-making capacity from the perspective of psychologists working with adults with an intellectual disability. A qualitative exploratory approach was employed, and the study was positioned in a social constructionist framework. Purposive and snowballing sampling methods were used to recruit 15 clinical psychologists working with adults with an intellectual disability. Data were collected with the use of individual semistructured interviews. Interview transcripts were analysed using a model of thematic analysis. Six themes were identified: (1) a presumption of capacity but a culture of incapacity, (2) supporting decision making as a process, (3) authenticity of decision making, (4) need for support and training, (5) contributions of psychology and (6) the way forward. Participants described that people with intellectual disabilities were often excluded from decision-making processes. They welcomed the functional approach to decision making, considered substituted decision making to be necessary within a support framework and described supporting decision making as a process. Systemic, resource and attitudinal challenges were identified.

60 Opening the Narrative on Deprivation of Liberty for the Older Person in Residential Healthcare Facilities: A Legal and Ethical Dilemma

Abstract Background While many people enter residential care of their own free will and because it is their preference, the evidence tells us that there are also many who if they had the choice would remain in their own homes. Lack of appropriate community supports may provide some impetus to enter residential care. According to Care Alliance Ireland, an additional four million hours of homecare needs to be provided to cope with the successful ageing demographics, at a cost of €110 million. There is no statutory or common-law power to detain a patient in a Healthcare Facility outside of the application of the Mental Health Act 2001. This presents legal, ethical and moral dilemmas for Healthcare Providers when caring for a person who lacks capacity wishes to self - discharge. A duty of care obligates healthcare professionals to act in the best interest of the individual. Under the Health Act 2007 the requirement is to provide for a ‘safe discharge’. Pending advancement of the Assisted Decision Making (Capacity) Act 2015 which provides a statutory framework to assist and support individuals to make legally-binding agreements about their welfare, their property and affairs we are currently acting under the Lunacy Regulations (1871). Methods We developed a ‘Deprivation of Liberty’ form which enable comprehensive Interdisciplinary Team discussion and direction of care. Presumption of capacity, respect for the resident’s wishes and consideration of all possible supportive actions up to and including sourcing community support services were considered. Results This format has enabled comprehensive discussion and robust adherence to human rights for three residents thus far Conclusion The situation remains that there is no legal framework to guide healthcare providers currently. Using a Human Rights based approach is imperative to guide us while awaiting advancement of the ADMA (2015) and Deprivation of Liberty legislation to be included in this act.

Supported Decision-Making from Theory to Practice: Implementing the Right to Enjoy Legal Capacity

The right to equal recognition before the law, protected by Article 12 of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), mandates the use of supported decision-making practices to enable disabled people, particularly those with intellectual and/or psychosocial disabilities, to enjoy their legal capacity. Finding ways to translate this theoretical mandate into practice poses a number of particularly challenging socio-legal issues, which this research seeks to address. The English Mental Capacity Act 2005 (MCA) sets out a right to support with decision-making (s.1(3)), underpinned by a presumption of capacity (s.1(2)). Qualitative interviews with intellectually disabled people, their supporters, and care and support professionals were undertaken to explore how disabled people make decisions in their everyday lives, the kinds of support they need, and the strategies for supported decision-making used in practice. Analysis of these interviews suggests that a range of supported decision-making techniques have been developed in practice and are effective in supporting everyday preferences and some life choices. Paradoxically, it appears that as decisions become more complex, the support available to disabled people reduces. Specifically, much less support is available for more difficult decisions around finances, healthcare and legal matters. We argue that the reasons for this are due to a web of regulatory, social and policy issues. We conclude that implementing the right to enjoy legal capacity through supported decision-making will require a combination of regulatory reform, social change and policy amendment.

Fluctuating capacity and impulsiveness in acquired brain injury: the dilemma of “unwise” decisions under the Mental Capacity Act

Purpose – The purpose of this paper is to examine the dilemma at the heart of nursing care – the striving for empowerment of people in nurses’ care with the responsibility to protect vulnerable adults from harm. In doing so, it argues that in difficult and borderline cases, capacity assessment is complex and ultimately based on a judgment involving interpretation, and welcomes the views of clinicians who have challenged the procedural test of capacity in the Mental Capacity Act (MCA). Design/methodology/approach – It presents an illustrative study of a person with acquired brain injury (ABI) resident in a nursing home, who had been assessed under the MCA and judged to have capacity regarding health and welfare decisions, who subsequently displayed a persistent and impulsive desire to leave the unit without thought of risk and vulnerability to herself, prompting safeguarding concerns, and a reassessment of her capacity. Findings – The paper asserts that supporting people with ABI during capacity assessments, as the MCA decrees, in a very structured way can create a false sense of “capacity”. It maintains that executive impairments in ABI, being difficult to assess in formal settings, are best undertaken over time, in real-life settings, with evidence from third parties. It welcomes the MCA’s desire to protect individual autonomy and avoid undue paternalism, through ensuring people are not deemed to lack capacity simply because they make an unwise decision. Originality/value – But it goes on to argue that in ABI it is often the fact of unwise decision making that is the prominent factor and main concern, particularly in regard to impulsive decision making. If nurses have to make a judgment as to how unwise decisions made with decision-making capacity are to be distinguished from unwise decisions made without it in people with ABI, then, the author concludes, a major area of difficulty for nurses is ascertaining when the presumption of capacity should be challenged, an area that an updated code of practice needs to clarify.

Supported Decision-making in the United Kingdom: Lessons for Future Success

This article summarises key aspects of the Mental Capacity Act (2005) in England and Wales. In particular, it focuses on the implementation of this Act and the lessons that can be drawn from the situation in the United Kingdom by those currently developing legislation around supported decision-making. The Mental Capacity Act (2005) has five core principles: (i) a presumption of capacity; (ii) individuals being supported to make their own decisions; (iii) unwise decisions; (iv) best interests; and (v) the least restrictive option. Although some good practice of supported decision-making is available, the House of Lords Select Committee Report (2014) identified that the Mental Capacity Act was currently very poorly implemented, with core issues including: a lack of understanding of the Act's principles, in particular, by health and social care professionals; a continuing prevalence of paternalistic substitute decision-making rather than the intended supported decision-making; and a general lack of change in the attitudes and culture from a caring and protective to an enabling and empowering approach. They also found perversion of the principles of the Mental Capacity Act, with the assumption of capacity being used to justify not providing services. The article concludes with a suggestion of a system for facilitating supported decision-making, as well as consideration of what is needed to change the culture.

Qualified for Power? On Epistemology in Voting

Equal distribution of suffrage is given a nearly “quasi-religious” status by democrats. However, the right to vote rests on a presumption of capacity, and knowledge and competence therefore are important features of democratic arrangements. Democratic theory often assumes that, in order for (representative) democracy to work properly, the average citizen should be interested in, and pay attention to, politics. In reality, however, only a minority of citizens live up to these standards. This paper examines whether demands of uncontroversial knowledge, that is, knowledge about what it means to vote, can be demanded of voters in order for them to be allowed to vote. It is concluded that, for reasons of justice and “issues of mutual concern”, such demands can be raised regarding such uncontroversial knowledge (but perhaps not for knowledge more controversial in kind).

Advance decision making – rhetoric or reality?

The Mental Capacity Act 2005 introduced a statutory framework for advance decisions, thus promoting autonomous healthcare decision making in advance of loss of capacity. In order to be valid and applicable, and so binding on healthcare professionals, advance decisions refusing treatment (ADRT) must specify treatments to be refused and the circumstances of refusal. Recent case-law indicates that a high level of specificity is required for advance refusals of life-sustaining treatment and, in contrast to a presumption of capacity for contemporaneous decisions, in some circumstances capacity must be demonstrated at the time of making the advance decision. In comparison with the ‘stringent’ requirements for ADRT, the more generic Advance Care Planning (ACP) is gaining more prominence in end of life decision making. The paper explores recent case-law and its impact on the effectiveness of ADRT in practice and compares with ACP.

Research ethics approval and discrimination.

We read with envy Galappathie et al’s study1 of detained patients’ awareness of the mental health review tribunal (MHRT). We applaud their decision to regard their study as part of service evaluation rather than as a research project requiring National Research Ethics Service Committee (NRESC) approval. We applied for NRESC approval for a study asking patients detained under Section 2 or Section 3 of the Mental Health Act 1983 about their views on the chances of the MHRT rescinding their detention if they appealed. The crucial question was ‘What do you think are the chances that you will be discharged by the Tribunal if you appeal?’ The NRESC which reviewed the application did not have a mental health patients’ representative, carers’ representative or mental health professional as its member. Therefore, it sought expert opinion from a retired clinical psychologist. The NRESC ruled that ‘the study should not be done in the acute phase of treatment when participants are detained and it would be more appropriate once they have been discharged. This would remove concerns about the ability of the participants to give informed consent whilst under detention and in a vulnerable condition’. We appealed against the decision and our application was referred to another NRESC which also did not have a mental health patients’ representative or carers’ representative, but had a psychologist as a member. We attended the review and explained that we endeavoured to assess detained patients’ views and that post-discharge retrospective assessment would be futile. We argued that the first principle of the Mental Capacity Act 2005 is the presumption of capacity. The General Medical Council guidance also states that one must not assume that a patient lacks capacity to make a decision solely because of their medical condition, including mental illness. We confirmed that patients who did not have capacity to decide whether to take part in the study will not be offered the opportunity to take part. This second NRESC agreed with the first one for the same reasons, that is, detained patients don’t have capacity to decide whether to take part in the study. This is an example of ignorance and consequent stigmatising attitudes held by those in authority, resulting in discrimination against mental health patients, carers and professionals. Members of NRESCs believing that those who are mentally ill lack the capacity to make simple decisions could significantly hamper research into mental illness and perpetuate the myth that psychiatry is the most unscientific medical specialty. Mental health professionals and patient groups may share part of the blame by not representing themselves on NRESCs.

The Assisted Decision-Making (Capacity) Bill 2013: content, commentary, controversy

Ireland's Assisted Decision-Making (Capacity) Bill (2013) aims to reform the law relating to persons who require assistance exercising their decision-making capacity. When finalised, the Bill will replace Ireland's outdated Ward of Court system which has an all-or-nothing approach to capacity; does not adequately define capacity; is poorly responsive to change; makes unwieldy provision for appointing decision-makers; and has insufficient provision for review. To explore the content and implications of the Assisted Decision-Making (Capacity) Bill. Review of the content of the Assisted Decision-Making (Capacity) Bill and related literature. The new Bill includes a presumption of capacity and defines lack of capacity. All interventions must minimise restriction of rights and freedom, and have due regard for "dignity, bodily integrity, privacy and autonomy". The Bill proposes legal frameworks for "assisted decision-making" (where an individual voluntarily appoints someone to assist with specific decisions relating to personal welfare or property and affairs, by, among other measures, assisting the individual to communicate his or her "will and preferences"); "co-decision-making" (where the Circuit Court declares the individual's capacity is reduced but he or she can make specific decisions with a co-decision-maker to share authority); "decision-making representatives" (substitute decision-making); "enduring power of attorney"; and "informal decision-making on personal welfare matters" (without apparent oversight). These measures, if implemented, will shift Ireland's capacity laws away from an approach based on "best interests" to one based on "will and preferences", and increase compliance with the United Nations' Convention on the Rights of Persons with Disabilities.

VULNERABLE ADULTS, MENTAL CAPACITY AND SOCIAL CARE REFUSAL

Since the explosion of literature on mental capacity in the late 1990s, health care lawyers, clinicians and ethicists have sought to grapple with the difficult question of when and in what circumstances a person ought to be allowed to refuse medical treatment. Much less discussed, but of equal significance, is the circumstances in which an individual ought to be allowed to refuse social care, whether that be in the form of personal care services, or more structured community care provision (e.g. supported accommodation). These issues demand equal consideration and concern in the light of shifting, and potentially conflicting, policy agendas of empowerment and protection. On the one hand, service users are empowered to take responsibility for the provision of care services (e.g. through the direct payments scheme) or supported to contribute decisions made about their care (e.g. under the Care Programme Approach). At the same time, services are required to implement safeguards to protect vulnerable adults from abuse and exploitation. The tensions generated by these policy goals are not new, nor are they irresolvable in all situations yet their effects have been thrown into sharp focus in the light of findings from serious case reviews concerning the abuse and neglect of apparently vulnerable adults who had apparently �€˜refused�€™ social care interventions. Such reports have prompted questions over the legal basis of such refusals of care and the appropriateness of forsaking adult protection interventions in favour of respecting individual choice. The case of Re F provides a timely opportunity to explore these tensions in a legal context. Ostensibly the case concerns the evidential threshold of incapacity required by law in order to trigger an application to the Court of Protection. The case is also significant, however, for its exploration of how capacity to make social care decisions may be assessed and how the courts deal with the issue of refusing care. F�€™s diagnosis �€“ a dissociative disorder of movement and a somatisation disorder �€“ resulted in her spending considerable amounts of time in bed, unable to move. F was described as uncooperative and antagonistic, causing considerable difficulties in providing the nursing care she required. In consequence of her refusal to engage with staff, the provision of care was reduced to a �€˜minimum�€™ level of care, three times a day for 45 minutes at each episode. F was treated by the local authority as a person with capacity and so her decisions to refuse care were respected. Notwithstanding this, the Authority remained concerned about F�€™s capacity. F�€™s father, acting as F�€™s litigation friend, sought a declaration from the Court of Protection concerning F�€™s capacity to refuse care. Regrettably, the Court was provided with rather limited written evidence of F�€™s capacity. A solicitor had previously met with F when F had sought to instigate legal proceedings in respect of her care. He concluded that she lacked capacity to instruct him, his view being premised on the fact that F did not appear to �€˜�€�appreciate the complexities of her position�€™. A neuro-psychologist, to whom F had been referred previously for a �€˜brief�€™ consultation, was �€˜inclined to think it on balance more reasonable to retain the presumption of capacity�€™ in respect of her decisions around the provision of care. DJ Jackson considered this evidence on November 27 2008 and declined to make any interim orders or directions relating to the psychiatric examination of F. She concluded that the evidential threshold required by s 48 had not been met. In her view, such orders or directions could not be made unless there was sufficient evidence that the presumption of capacity, enshrined in the Act, had been rebutted. F appealed, arguing that the judge had erred in requiring a rebuttal of the presumption of capacity before the Court�€™s jurisdiction could be engaged. In the meantime, F cooperated with an independent psychiatric report, which concluded that she lacked capacity to make decisions about her care. In consequence, the local authority and F�€™s father applied to the Court of Protection, which granted an interim declaration that F lacked capacity in this respect and an interim order that the care plan drawn up by the local authority be implemented in F�€™s best interests. On May 28 2009, Judge Marshall QC confirmed the orders as to F�€™s incapacity and the implementation of the care plan. She then moved on to consider the appeal against the evidential threshold required by the Act to engage the Court�€™s jurisdiction.

Evidence. Presumption of Capacity to Bear Children. Rebuttal in Income Tax Litigation

Evidence. Presumption of Capacity to Bear Children. Rebuttal in Income Tax Litigation

Taxation. Presumption of Capacity to Have Issue as Affecting Exemption from Succession Tax

Taxation. Presumption of Capacity to Have Issue as Affecting Exemption from Succession Tax