Catalogue Search | MBRL
Are you sure you want to remove the book from the shelf?
{{itemTitle}}
3,117
result(s) for
"mental capacity"
Sort by:
Mental capacity in relationship : decision-making, dialogue, and autonomy
Recent legal developments challenge how valid the concept of mental capacity is in determining whether individuals with impairments can make decisions about their care and treatment. Kong defends a concept of mental capacity, but argues that such assessments must consider how relationships and dialogue can enable or disable the decision-making abilities of these individuals. This is thoroughly investigated using an interdisciplinary approach that combines philosophy and legal analysis of the law in England and Wales, the European Court of Human Rights, and the United Nations Convention on the Rights of Persons with Disabilities. By exploring key concepts underlying mental capacity, the investigation concludes that both primary relationships, as well as capacity assessments themselves, must display key competencies in order to ensure that autonomy skills are promoted and encouraged. This ultimately provides scope for justifiable interventions into disabling relationships and articulates the dialogical practices that help better situate, interpret, and understand the choices and actions of individuals with impairments.
Book
The ‘human element’ in the social space of the courtroom: framing and shaping the deliberative process in mental capacity law
The context- and person-specific nature of the Mental Capacity Act 2005 (MCA) in England and Wales means inherent indeterminacy characterises decision-making in the Court of Protection (CoP), not least regarding conflicting values and the weight that should be accorded to competing factors. This paper explores how legal professionals frame and influence the MCA's deliberative and adjudicative processes in the social space of the courtroom through a thematic analysis of semi-structured interviews with legal practitioners specialising in mental capacity law and retired judges from the CoP and the Courts of Appeal with specific experience of adjudicating mental capacity disputes. The concept of the ‘human element’ offers important new insight into how legal professionals perform their roles and justify their activities in the conduct of legal proceedings. The ‘human element’ takes effect in two ways: first, it operates as an overarching normative prism that accounts for what good practice demands of legal professionals in mental capacity law; secondly, it explains how these professionals orientate these norms in the day-to-day conduct of their work. The ‘human element’ further presents challenges that demand practical negotiation in relation to countervailing normative commitments to objectivity and socio-institutional expectations around professional hierarchies, expertise, and evidential thresholds.
Journal Article
‘Clear explanation’ in mental capacity assessment
We comment on Martin Curtice's article on expert and professional reports for the Court of Protection, which highlights the importance of ‘clear explanation’ in mental capacity assessment. We put the Court in a broader context of the Mental Capacity Act and summarise recent research and education that aims to help give clinicians working in England and Wales capacity assessment guidance that is clinically grounded, multi-perspectival and legally defensible.
Journal Article
A Local Authority v JB 2020 EWCA Civ 735; 2019 EWCOP 39
In Re JB, a local authority, concerned with the risk the respondent posed to vulnerable women, successfully appealed against an order made in the Court of Protection that declared JB, an autistic man with impaired cognition, possessed capacity to consent to sexual relations. In this recent decision, the Court of Appeal has arguably reset the last 15 years of jurisprudence concerning P’s capacity to make decisions in regard to sexual relations. Previous case law focused on P’s ability to consent to such relations, and whether P understood the information relevant to that decision. Notwithstanding the abundance of legal authority, including the recent appellate judgments of Hayden J in London Borough of Tower Hamlets v NB and AU (consent to sex) [2019] EWCOP 27. and B v A Local Authority [2019] EWCA Civ 913. there was a lacuna in the existing law in relation to what information was relevant for the purposes of assessing the issue of capacity to consent to sexual relations. Judges have traditionally adopted a protectionist stance in understanding “the information relevant to the decision” under s3(1) of the Mental Capacity Act 2005 (MCA), with an emphasis on whether P understood the risks of pregnancy and sexually transmitted diseases. However, the Court of Appeal in Re JB has broadened its interpretation of ‘relevant’ information to also include the ability to understand the importance of a partner’s consent to such relations. This is a welcome change to previous courts’ interpretations of the ‘nature’ of the sexual act, moving from an approach focused on the physical sexual mechanics to one which views the nature of sex as a mutually consensual engagement. However, a fundamental shift in how we view such cases is likely to have far-reaching consequences, particularly for local authorities and professionals seeking guidance in relation to their care planning.
Journal Article
How nurses can support the inclusion in research of older people who lack capacity to consent
Why you should read this article:• To understand the implications of excluding from research older people who lack capacity to consent• To enhance your knowledge of the legal framework that supports the inclusion in research of people who lack capacity to consent• To locate resources that can assist you in ensuring that older people in your care can participate in researchResearch is important because it underpins evidence-based care. However, people who lack capacity to consent are often excluded from research, due partly to ethical concerns and practical challenges, and partly to a lack of awareness among professionals of the legal framework that supports their inclusion. The COVID-19 pandemic, which has extensively affected care home residents, has reinforced the importance of including older people with cognitive impairment in research. Nurses who care for older people with impaired cognition have an important role in ensuring these people have the opportunity to contribute to and benefit from research.This article discusses some of the challenges associated with the inclusion in research of older people who lack capacity to consent, including the involvement of relatives and friends in decision-making. The article describes the findings of recent research and shares resources with the aim of supporting nurses to ensure that older people in their care who lack capacity can participate in research.
Journal Article
Advance decisions to refuse treatment and suicidal behaviour in emergency care: ‘it's very much a step into the unknown’
Complex challenges may arise when patients present to emergency services with an advance decision to refuse life-saving treatment following suicidal behaviour.
To investigate the use of advance decisions to refuse treatment in the context of suicidal behaviour from the perspective of clinicians and people with lived experience of self-harm and/or psychiatric services.
Forty-one participants aged 18 or over from hospital services (emergency departments, liaison psychiatry and ambulance services) and groups of individuals with experience of psychiatric services and/or self-harm were recruited to six focus groups in a multisite study in England. Data were collected in 2016 using a structured topic guide and included a fictional vignette. They were analysed using thematic framework analysis.
Advance decisions to refuse treatment for suicidal behaviour were contentious across groups. Three main themes emerged from the data: (a) they may enhance patient autonomy and aid clarity in acute emergencies, but also create legal and ethical uncertainty over treatment following self-harm; (b) they are anxiety provoking for clinicians; and (c) in practice, there are challenges in validation (for example, validating the patient's mental capacity at the time of writing), time constraints and significant legal/ethical complexities.
The potential for patients to refuse life-saving treatment following suicidal behaviour in a legal document was challenging and anxiety provoking for participants. Clinicians should act with caution given the potential for recovery and fluctuations in suicidal ideation. Currently, advance decisions to refuse treatment have questionable use in the context of suicidal behaviour given the challenges in validation. Discussion and further patient research are needed in this area.
D.G., K.H. and N.K. are members of the Department of Health's (England) National Suicide Prevention Advisory Group. N.K. chaired the National Institute for Health and Care Excellence (NICE) guideline development group for the longer-term management of self-harm and the NICE Topic Expert Group (which developed the quality standards for self-harm services). He is currently chair of the updated NICE guideline for Depression. K.H. and D.G. are NIHR Senior Investigators. K.H. is also supported by the Oxford Health NHS Foundation Trust and N.K. by the Greater Manchester Mental Health NHS Foundation Trust.
Journal Article
Is mental capacity in the eye of the beholder?
Purpose
The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity.
Design/methodology/approach
Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”).
Findings
It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.
Research limitations/implications
It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgments based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.
Originality/value
This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD.
Journal Article
Decision making capacity for treatment in psychiatric inpatients: a systematic review and meta-analysis
Decision-making capacity (DMC) among psychiatric inpatients is a pivotal clinical concern. A review by Okai et al. (2007) suggested that most psychiatric inpatients have DMC for treatment, and its assessment is reliable. Nevertheless, the high heterogeneity and mixed results from other studies mean there is considerable uncertainty around this topic. This study aimed to update Okai's research by conducting a systematic review with meta-analysis to address heterogeneity. We performed a systematic search across four databases, yielding 5351 results. We extracted data from 20 eligible studies on adult psychiatric inpatients, covering DMC assessments from 2006 to May 2022. A meta-analysis was conducted on 11 papers, and a quality assessment was performed. The study protocol was registered on PROSPERO (ID: CRD42022330074). The proportion of patients with DMC for treatment varied widely based on treatment setting, the specific decision and assessment methods. Reliable capacity assessment was feasible. The Mini-Mental State Examination (MMSE), Global Assessment of Function (GAF), and Brief Psychiatric Rating Scale (BPRS) predicted clinical judgments of capacity. Schizophrenia and bipolar mania were linked to the highest incapacity rates, while depression and anxiety symptoms were associated with better capacity and insight. Unemployment was the only sociodemographic factor correlated with incapacity. Assessing mental capacity is replicable, with most psychiatric inpatients able to make treatment decisions. However, this capacity varies with admission stage, formal status (involuntary or voluntary), and information provided. The severity of psychopathology is linked to mental capacity, though detailed psychopathological data are limited.
Journal Article
A Practical Guide to the Mental Capacity Act 2005 : Putting the Principles of the Act into Practice
This book provides a theory-to-practice breakdown of the Mental Capacity Act 2005 and what its implications are for health and social care workers. Informative and accessible, it provides a clear depiction of the ethos behind the Act and offers instruction for its effective, lawful and person-centred application. This practical guide describes how to assess capacity and what a good assessment of capacity should look like, how to deal with conflicts and dilemmas, and the role of legal authority in decision-making. A Practical Guide to the Mental Capacity Act 2005 is an invaluable resource for any health and social care professionals working with individuals who lack decision-making capacity.
eBook