Using the Mental Capacity Act in complex cases

Abstract

Purpose -The purpose of this paper is to explore the way that practitioners apply the 2005 Mental Capacity Act (MCA) in complex cases involving people with learning disabilities who cannot make some key decisions by themselves. Like many qualitative studies it began with a felt sense that practitioners were struggling to apply the clear framework set out in the Act to real life situations, and that some of the decisions they were faced with did not fit neatly into the linear, cognitive model of decision making set out in the MCA and its accompanying guidance.Design/methodology/approach -The study was conducted under the aegis of the Office of the Public Guardian (OPG) during 2010-2011. A number of ''complex'' cases were obtained from Social Services, Primary Care Trusts and other organisations and subjected to thematic analysis. The current paper focuses on the 16 cases that involved people with learning disabilities.Findings -A number of issues were identified that underlay the complexity of the cases examined. The cases drew attention, in particular, to the way in which practitioners were confronted with mounting concerns as opposed to single, discrete decisions, with the risk that decisions could be delayed until positive choices were much less available.Originality/value -The aim of the study was to support the use of the Act in these situations and to give practitioners confidence in applying its principles across a wide range of diverse circumstances. Although the original study specifically related to the English legislation, the factors that led people to consider a case ''complex'' would apply equally in other jurisdictions. The study also shed light on difficulties that arise when intervening in less formal ways.

The Mental Capacity Act: 10 years on – the key learning areas for healthcare professionals

“…Yet, worryingly, a report published 6 years after the introduction of the MCA, which explored the premature deaths of those with an intellectual disability, found that decisions were often made by one person, rather than the multidisciplinary group approach, which is advocated in the MCA. 35 Furthermore, Heslop et al 10 and Taylor 11 found that health care professionals' decisions were influenced by prejudice and personal views and based on what they felt was the appropriate decision to be made. This was combined with a lack of information about the patient and family, which is required in order to achieve a truly holistic review.…”

The bounds of liberty: lessons learnt from treating a man with alcohol use disorder, autism and learning disability

“…John developed very rigid drinking behaviours and would not contemplate any alternative that would cause him to spend more money than he did, despite being financially secure. An audit of complex cases conducted by the UK's Office of the Public Guardianthe body responsible for administrating the MCAsuggested autistic intransigence could impair a person's capacity (Brown and Marchant, 2013). How should mental capacity assessments account for autistic rigidity of thought when it is pertinent to the decision being assessed?…”

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

“…Additionally, standardised capacity assessments do not take into account the impact of emotional state on decision-making (Beadle- Brown, 2015). Within the MCA guidance, the examples of assessments place emphasis on making information available, rather than assessing real-life, dynamic situations (Brown and Marchant, 2013). Thus, when the individual steps out of this structured environment, and is required to make complex multi-faceted decisions that may have an emotional component, problems may arise which may affect their safety and wellbeing (Brown and Marchant, 2013).…”

“…Within the MCA guidance, the examples of assessments place emphasis on making information available, rather than assessing real-life, dynamic situations (Brown and Marchant, 2013). Thus, when the individual steps out of this structured environment, and is required to make complex multi-faceted decisions that may have an emotional component, problems may arise which may affect their safety and wellbeing (Brown and Marchant, 2013). The implementation of the MCA and assessment in this way can lead to wrongful assumptions of capacity that leave survivors in vulnerable situations without appropriate support and safeguarding in place (George and Gilbert, 2018).…”