Mental capacity legislation and its impact on parents with learning difficulties involved in childcare and family law proceedings assessments in England and Wales
| Published date | 12 February 2018 |
| DOI | https://doi.org/10.1108/JAP-02-2017-0004 |
| Pages | 17-32 |
| Date | 12 February 2018 |
| Author | Daniel T. Wilcox,Leam A. Craig,Marguerite L. Donathy,Peter MacDonald |
| Subject Matter | Health & social care,Vulnerable groups,Adult protection,Safeguarding,Sociology,Sociology of the family,Abuse |
Mental capacity legislation and its impact
on parents with learning difficulties involved
in childcare and family law proceedings
assessments in England and Wales
Daniel T. Wilcox, Leam A. Craig, Marguerite L. Donathy and Peter MacDonald
Abstract
Purpose –The purpose of this paper is to consider the impact of mental capacity legislation when applied
to parents with learning difficulties who lack capacity within childcare and family law proceedings in
England and Wales.
Design/methodology/approach –The paper relies on a range of material including reports published by
independent mental health foundations, official inquiries and other public bodies. It also refers to academic
and practitioner material in journals and government guidance.
Findings –The paper critically reviews the application of the guidance when assessing mental capacity
legislation as applied in England and Wales and offers by way of illustration several case examples where
psychological assessments, and the enhancement of capacity, have assisted parents who were involved in
childcare and family law proceedings.
Research limitations/implications –There has been little published research or governmental reports on
the number of cases when parents involved in childcare and family law proceedings have been found to lack
capacity. No published prevalence data are available on the times when enhancing capacity has resulted in a
change of outcome in childcare and family law proceedings.
Practical implications –The duty is on the mental health practitioners assessing mental capacity that they
do so in a structured and supportive role adhering to good practice guidance and follow the guiding
principles of mental capacity legislation assuming that the individual has capacity unless it is established that
they lack capacity. Guidance and training is needed to ensure that the interpretation of the Mental Capacity
Act (MCA) and its application is applied consistently.
Social implications –For those who are considered to lack mental capacity to make specific decisions,
particularly within childcare and family law proceedings, safeguards are in place to better support such
individuals and enhance their capacity in order that they can participate more fully in proceedings.
Originality/value –While the MCA legislation has now been enacted for over ten years, there is very little
analysis of the implications of capacity assessments on parents involved in childcare and family law
proceedings. This paper presents an overview and, in places, a critical analysis of the new safeguarding
duties of mental health practitioners when assessing for, and enhancing capacity in parents.
Keywords Intellectual disability, Case studies, Childcare and family law proceedings,
Mental Capacity Act, Mental capacity legislation, Parents with learning difficulties
Paper type General review
Introduction
Since the introduction of the Mental Capacity Act (MCA, 2005) in England and Wales, mental
capacity legislation has had an increasing impact on legal decision making. In England and
Wales, the Mental Capacity Act (MCA) offers provision for proxy decision making for medical
and other treatment, or for general health care, where people lack the capacity to make such
decisions themse lves. The MCA affects people who are 1 6 years or older and living in England
Received 24 February 2017
Revised 25 September 2017
17 October 2017
Accepted 29 October 2017
The authors would like to thank
Zerine O’Keeffe,
Fiona Lawson-Hughes,
Jane Swancott, Nicole Horton and
Vicki Parker for their assistance in
the preparation of this paper.
The authors would also wish to
express the appreciation to the
JAP reviewers for their advice in
revising and restructuring this
paper into its current form.
Daniel T. Wilcox is based at
Wilcox Psychological
Associates, Birmingham, UK.
Leam A. Craig is a Consultant
Psychologist at the Forensic
Psychology Practice Ltd,
Birmingham, UK.
Marguerite L. Donathy and
Peter MacDonald are both
based at Wilcox Psychological
Associates, Birmingham, UK.
DOI 10.1108/JAP-02-2017-0004 VOL. 20 NO. 1 2018, pp. 17-32, © Emerald Publishing Limited, ISSN 1466-8203
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THE JOURNAL OF ADULT PROTECTION
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or Wales. The people most commonly affected by mental capacity legislation are those affected
by dementia (Regnard and Louw, 2011), intellectual and/or physical disabilities (Cowley and
Lee, 2011), mental ill health (Wilson and Dhar, 2010) or an acquired brain injury (Mukherjee and
McDonough, 2006). Mental incapacity may be temporary as with individuals affected by
substance intoxi cation, treatable delusional beli efs, transient cond itions that impac t on
psychological wellbeing, or difficulties as normal as childbirth, wherein an agreed post-birth
time must elapse before normal mental capacity is said to resume (National Institute for Health
and Care Excellence, 2014).
Almost a decade since the introduction of the MCA, the House of Lords (2014) Select
Committee, on the implementation and application of the MCA, reported that although
marking a turning point in the statutory rights of people who may lack capacity, the MCA
implementation had been impeded by poor execution of its basic tenets. Their report stated,
“The Act has suffered from a lack of awareness and a lack of understanding. For many who are
expected to comply with the Act it appears to be an optional add-on, far from being central to
their working lives”(p. 6). Their Lordships continued, “The evidence presented to us concerns
the health and social care sectors principally. In those sectors the prevailing cultures of
paternalism (in health) and risk-aversion (in social care) have prevented the Act from becoming
widely known or embedded. The empowering ethos has not been delivered. The rights
conferred by the Act have not been widely realised. The duties imposed by the Act are not
widely followed”(p. 6). Their Lordships noted that the evidence they reviewed in preparing their
post-legislative scrutiny of the Act indicated that “thousands, if not tens of thousands, of
individuals are being deprived of their liberty without the protection of law, and therefore
without the safeguards which Parliament intended. Worse still, far from being used to protect
individuals and their rights, they are sometimes used to oppress individuals and to force upon
them decisions made by others without reference to the wishes and feelings of the person
concerned”(p. 7).
A lack of adherence to the MCA and its pri nciples is cited as a contributing f actor to premature
deaths of adults with intellectual disabilities, associated with “best interests”decision-m aking
processes and a lack of clear understanding of the definition of “serious medical treatment”,
under the provisio ns of the Act (Heslop et al., 2014). Other reports, including the Confidential
Inquiry into Premature Deaths of People with Learning Disabilities (CIPOLD, 2013) have come
to similar conclusions. CIPOLD (2013) reviewed the deaths of 247 people with learning
disabilities in England and Wales between 2010 and 2013 in response to the Mencap (2012)
report, “Death by indiffere nce”. The inquiry reported that reviews of the deaths of people with
learning disabilities identified concerns about adherence to the MCA, and the differences in the
understanding and implementation of each of its principles. The inquiry reported evidence of
disagreement as to what professionals understood concerning decision making about medical
intervention and thus a lack of consistency about appointing Independent Mental Capacity
Advocates (IMCAs) to support those without family members to represent their views. The MCA
introduced the role of IMCAs as legal safeguards for people who lack the capacity to make
specific important decisions, including making decisions about where they live and about
serious medical treatment options.
Further concern relating to the inadequate assessment of mental capacity and application of
the Act comes from an audit conducted by the Mental Health Foundation (MHF, 2010) into the
use of a free online assessment tool, the Assessment of Mental Capacity Audit Tool (AMCAT).
AMCAT was designed to assist mental health practitioners working within health and social
care settings in the assessment of mental capacity. The report, produced on the basis of initial
data gathered, gives an indication of how well the completed mental capacity assessments
complied with the tenets of the MCA. After a period of employing this tool for three to four
months, initial analysis was undertaken revealing that less than 10 per cent of those who had
completed the AMCAT were following the MCA Code of Practice adequately. The concerns
noted included many fundamental errors. The study revealed that 38 per cent of the
respondents had not adhered to the Act and that their basis for conducting a mental capacity
assessment was owing to concerns unrelated to specific doubts about capacity. Rather, the
evaluations were associated with issues such as the age of the individual or matters including
their appearance, history, diagnosis, illness or reported behavioural anomalies. This is
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