Chris Heginbotham

The application of the Mental Capacity Act 2005 among geriatric psychiatry patients: a pilot study

BACKGROUND The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 in England and Wales. The experience of clinicians working in Old Age Psychiatry, who are likely to have greater experience in the use of MCA, in the early implementation of the MCA was examined. METHODS Case-notes of 37 patients in seven different Old Age Psychiatry services in two mental health trusts in west London, who had received at least one assessment of decision-making capacity (DMC) for a specific issue, were examined. A qualitative thematic analysis pertaining to the criteria used for the assessment of DMC, determination of best interests, least restrictive option and unwise decision was used for data analysis. RESULTS The main findings were: the criteria used for the assessment of DMC and the determination of best interests were those described in the MCA and the accompanying Code of Practice; and clinicians were developing the concepts of least restrictive option and unwise decision with face validity despite the absence of their definitions in the MCA. CONCLUSION Caution should be exercised in extrapolating the findings of this study, which is confined to two Mental Health Trusts in one geographical area and the speciality of Old Age Psychiatry, to other localities and other specialties. Nevertheless, there was evidence that clinicians were following the basic principles of the MCA correctly.

The early experience of Old Age Psychiatrists in the application of the Mental Capacity Act 2005: a pilot study

BACKGROUND The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 in England and Wales. METHODS A pilot questionnaire study examined the experience of consultants in Old Age Psychiatry in the early implementation of the MCA pertaining to local policy and training in the application of the MCA, the assessment of decision-making capacity, the determination of best interests, and the use of the least restrictive option and restraint. RESULTS Fifty-two (27%) of the 196 consultants in Old Age Psychiatry returned useable questionnaires. Seventy-five percent of them reported that local training on the application of the MCA was available, but less than 50% reported that training was mandatory. The vast majority of assessments of decision-making capacity were conducted by consultants in Old Age Psychiatry. Almost all of them reported using the four-fold specific test of decision-making capacity (DMC) described in the MCA. Restraint was reported to be rarely used. CONCLUSIONS Consultants in Old Age Psychiatry generally reported using the criteria for the assessment of DMC, the determination of best interests and restraint described in the MCA. The findings highlight concern about the workload of clinicians in implementing the MCA and this requires careful monitoring. Consideration should be given to statutory provision of training in the application of the MCA by all healthcare and social care providers for all their healthcare and social care staff.

The Mental Capacity Act: some implications for black and minority ethnic elders

The Mental Capacity Act 2005 (MCA) [1] was partially implemented in April 2007 and fully implemented from 1 October 2007 in England and Wales. Lack of decision-making capacity (DMC) is associated with cognitive impairment and dementia [2]. The proportion of adults aged 65 years and above in black and minority ethnic (BME) groups is rapidly increasing [3]. The prevalence of dementia in BME groups is either similar to or higher than the indigenous white British group [4–7]. There were 531,909 BME elders in the 2001 population census [8]. One study estimated that 11,860 of these BME elders had dementia in 2004 in the United Kingdom [9]. Therefore, the increasing number of BME elders will be assessed under the MCA. The Code of Practice [10] accompanying the MCA recognises that language, culture and religion can influence the application of the MCA. The MCA has been fully implemented for 1 month now and therefore, it is difficult to draw on personal anecdotal experience. However, many of the issues discussed below, pertaining to the MCA, have been experienced anecdotally by the authors in the implementation of the Mental Health Act, 1983, over many years. A successful assessment of the DMC and the application of the MCA are contingent upon the assessor’s fluency in the subject’s language, subject’s fluency in English, accuracy of interpretation services and availability of appropriate vocabulary in the subject’s language for concepts discussed during the assessment. The phrase decision-making capacity, a core issue of the MCA, lacks an equivalent in some languages spoken by BME elders (e.g. Gujarati). Other issues that may be discussed during the assessment of DMC, including symptoms, diagnosis and treatments, may also lack matching vocabulary, and this has been observed for mental illness in some BME groups [11]. Many BME elders are not fluent in English [12]. Ideally, the assessor should conduct the assessment in the subject’s language, but bilingual health and social care workers are scarce [13]. Relatives, non-clinical staff, clinical staff and professional interpreters have been used for interpretation in clinical practice [13]. Lay interpreters may be biased because they are emotionally involved; they may inaccurately or inappropriately translate the questions and answers and translate their opinions rather than facts. Professional interpreters, therefore, should always be used for the purposes of the MCA [10]. Dialect, gender and ethnicity are also important in the choice of interpreters. Different dialects of the same language may be spoken by different ethnic groups. The gender of the interpreter is very important in some BME groups. For example, due to traditional cultural values, difficulties in establishing rapport and ascertaining accurate information may occur if female interpreters are not used for elderly Indian women. Similar difficulties will also occur if the ethnicity of the subject and the interpreter is not matched accurately. For example, Afghani interpreters may speak both Farsi and Pashto, but there may be difficulties if the ethnicity of the interpreter is not matched with that of the subject within the Afghani group. The Code of Practice advocates provision of written information and other methods of communication. Many BME elders are unable to read their mother tongue, and written information will not be helpful unless a professional reader is readily available as and when the subject wishes to read the information, but this may not be a practical option. Audio tapes, CDs, video tapes and DVDs may be more appropriate mediums to provide information, but availability of technical equipment would have to be ensured. Other cultural and religious factors are also important. For example, elders practising Hinduism and Jainism are expected to disengage from economic, social and domestic responsibility [14] and, therefore, may indicate that any decision should be made by their eldest son. Also, elderly Indian women, in accordance with traditional cultural practice, may indicate that any decision should be made by their husband. The MCA does not allow other individuals to consent on behalf of adult subjects. Therefore, this implied delegation of decision-making raises major ethical difficulties that have not been recognised or addressed in the MCA other than through lasting powers of attorney or court-appointed deputies. The issue of discrimination within the MCA arises if some BME elders could only practice their traditional cultural values through this formal mechanism. Some cultural and religious practices may lead to refusal of treatment (in some faiths blood transfusion is banned) and trigger an assessment of DMC. The broad principles of the MCA and the guidance in the Code of Practice appear to cover many of these issues. For example, those lacking DMC on an issue could have decisions made using the best interest principle, and the determination of best interest requires consideration of the subjects’ previous wishes, feelings, beliefs and roles (including culture and religion). However, details of these applications of the MCA are buried underneath the general principles and are open to differing interpretations during the assessment of BME elders.

A pilot study of the early implementation of the Mental Capacity Act 2005 in England and Wales: the experience of consultants in old age psychiatry.

Background The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 in England and Wales. Methods A pilot qualitative study using thematic analysis examined the experience of consultants in old age psychiatry in the early implementation of the MCA using a questionnaire designed to ascertain the experienced difficulties and the positive experiences of implementing the MCA, and its impact on their workload and associated changes in staffing levels. Results Fifty-two (27%) of the 196 consultants in old age psychiatry returned usable questionnaires. Eleven categories of difficulties and nine categories of positive experiences in the implementation of the MCA were reported. Two-thirds of respondents reported an increase in their workload, but over 90% reported no associated changes in staffing levels. Conclusions The factors contributing to the experienced difficulties and positive experiences in the implementation of the MCA require careful identification because strategies to lessen the difficulties and to maintain positive experiences need to be developed. The definitions of restraint and deprivation of liberty used in clinical practice and the overlap between these definitions requires careful study. The workload of clinicians in the context of implementing the MCA requires ongoing monitoring.

Deprivation of Liberty Safeguards in England: implementation costs

BACKGROUND The Deprivation of Liberty Safeguards (DoLS), introduced into the Mental Capacity Act 2005, were fully implemented on 1 April 2009 in England and Wales. The government estimated 20 000 assessments for DoLS at a cost of £600 per assessment. Aims To estimate the costs likely to be incurred with the implementation of DoLS in England. METHOD The cost of conducting a single DoLS assessment was estimated using resource-utilisation data ascertained from 37 professionals, secretarial staff and independent mental capacity advocates involved with DoLS assessments in six diverse local DoLS offices. RESULTS The estimated average cost of a single DoLS assessment was £1277. CONCLUSIONS The estimated average cost of a single DoLS assessment was significantly higher than the £600 estimated by the government. However, the allocated budget, based on 20 000 estimated DoLS assessments in the first year of its implementation, is likely to be adequate because a significantly lower number of assessments (only 5200) were conducted in the first 9 months after its implementation.

Fit for the 21st Century? A Review of the Report of the Joint Committee on the Draft Mental Health Bill 2004

The proposed revision to mental health legislation of England and Wales has been long in gestation. In 1998 the government asked Professor Genevra Richardson to chair an expert committee to review the legislation and report (Department of Health, 1999a). By and large the committee’s recommendations were not accepted by government but were followed by a Green Paper in 1999 (Department of Health, 1999b), a White Paper in 2000 (Department of Health, 2000), and a draft Bill in 2002 (Department of Health, 2002). Organisations and individuals submitted over 2,000 commentaries on the draft Bill, many sharply critical of one or more aspects of the proposed legislation. Following further consideration by the Department of Health, including a series of stakeholder seminars during 2003 and early 2004, the revised draft Bill with guidance notes was published on 13 September 2004 accompanied by a composite response to the commentaries received in 2002 (Department of Health, 2004c; 2004a). As well as the more controversial aspects that have generated most debate, the Bill contains some positive developments. For example, the proposals for advocacy are to be welcomed, as is the drive towards more community treatment and, subject to some important caveats, the availability of a tribunal soon after initial admission to hospital is a step towards meeting UN recommendations for ‘speedy’ access to a court or similar body. Although this article will focus on the matters that have created most argument, it should not be assumed that everything about the Bill is contentious, or that there are not valuable aspects of the proposals that should be retained. At 307 clauses and 14 schedules the Bill is, on that measure, over twice as long as the Mental Health Act 1983 and, by common consent, is complex and difficult for the lay person to understand readily. This is a pity as one objective for the Bill was to create a new legal framework for the 21st century, recognising the trend towards community provision of mental health care over the last 20 years or so. Indeed, the Joint Committee on the Draft Bill suggested that any Bill presented to Parliament must be clearer and easier to read than the current draft. Whether the Bill achieves another objective of creating a radically new approach to compulsory care is open to question. Many important issues have caused controversy during preparation of the Bill but three particular changes introduced in the Bill raise significant concerns and deserve most attention. They are: (i) to amend (and widen) the conditions for compulsion in the 1983 Act; (ii) to place a Mental Health Tribunal on ‘entry’ to compulsion as well as ‘exit’; and (iii) to introduce non-resident orders – a form of community treatment provision. The last of these, although ostensibly one of the main reasons for new legislation, will be dealt with in this article in the context of decisions of the tribunal. Early in the preparation of the Bill the Department of Health came to the view that amending the Mental Health Act 1983 was not an option as it would require such fundamental change that a wholly new piece of legislation was needed. In the event, and without debating the many differences of view expressed by interested parties such as the Mental Health Alliance, the Bill itself has now been amended and modified to the point where revisions to the Mental Health Act 1983 could have conceivably provided an easier, more