Assessments of mental capacity: upholding the rights of the vulnerable or the misleading comfort of pseudo objectivity?
| Date | 28 March 2019 |
| Pages | 74-84 |
| Published date | 28 March 2019 |
| DOI | https://doi.org/10.1108/JAP-10-2018-0026 |
| Author | Jim Rogers,Lucy Bright |
| Subject Matter | Health & social care,Vulnerable groups,Adult protection,Safeguarding,Sociology,Sociology of the family,Abuse |
Assessments of mental capacity:
upholding the rights of the vulnerable
or the misleading comfort of
pseudo objectivity?
Jim Rogers and Lucy Bright
Abstract
Purpose –The purpose of this paper is to present findings from a research project which investigated the
approaches of different groups of assessors to the mental capacity assessments which are required to be
conducted as part of Deprivation of Liberty Safeguards (DOLS).
Design/methodology/approach –Four case study vignettes were given to participants. Three groups
involved in the DOLS assessment process were interviewed by telephone about the factors that may
influence their capacity assessments.
Findings –Most assessors didnot refer to the required two-stage testof capacity or the “causative nexus”
which requiresthat assessors must make clear that it is the identified“diagnostic”element which is leadingto
the inability to meet the “functional”requirements of the capacity test. The normative element of capacity
assessmentsis acknowledgedby a number of assessors whosuggest that judging a person’sabilityto“weigh”
information, in particular, is a subjective and value-based exercise, which is given pseudo objectivity by the
language of the MentalCapacity Act (MCA). A number of elements of good practicewere also identified.
Research limitations/implications –In thisexploratory study, participantnumbers were small (n¼21), and
the authorsrelied on self-report rather thanactual observations of practiceor audit of completed assessments.
Practical implications –The findingsare of relevance to all of those working in healthand social care who
undertakeassessmentsof mental capacity,and will be helpful to all of thosetasked with designingand delivering
trainingin relation to the MCA 2005.They also have relevanceto policy makers in theUK who are involved with
reforms to DOLSregulations, and to thosein other countries whichhave legislation similar tothe MCA.
Originality/value –Much existing literature exhorts further training around the MCA. The authors suggest
that an equally important task is for practitioners to understand and be explicit about the normative elements
of the process, and the place of ethics and values alongside the more cognitive and procedural aspects of
capacity assessments.
Keywords Safeguarding, Deprivation of Liberty Safeguards, Mental capacity, Best interests,
Case study vignettes, Professional values
Paper type Research paper
Introduction
The MCA (2005) is a significant piece of legislation in England and Wales. One aim of the
developers of this act was to bring about a paradigm change, in terms of viewing all citizens,
including those with a range of impairments, as bearers of a set of rights. This shift has led to an
environment in which law, policy and practice guidance in health and social care fields privilege
autonomy, and aim to put the individual at the heart of decision making (House of Lords Select
Committee on the Mental Capacity Act 2005, 2013). A number of other countries have enacted
similar legislation. For example, a survey of 32 European countries found that most had legal and
policy frameworks which protect individual rights to some degree for those whose decision
making is impaired because of dementia (Alzheimer Europe, 2016).
Received 23 October 2018
Revised 29 November 2018
11 December 2018
Accepted 17 December 2018
Jim Rogers is based at the
Department of Health and
Social Care, College of Social
Science, University of Lincoln,
Lincoln, UK.
Lucy Bright is based at the
College of Social Science,
University of Lincoln,
Lincoln, UK.
PAG E 74
j
THE JOURNAL OF ADULT PROTECTION
j
VOL. 21 NO. 2 2019, pp. 74-84, © Emerald Publishing Limited, ISSN 1466-8203 DOI 10.1108/JAP-10-2018-0026
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