I am happy as a pig in clover this morning, as those lovely folks at Emerald Journals let me have a peek at the latest edition of The Journal of Adult Protection, which is entirely given over to discussing the Mental Capacity Act 2005 (MCA).
There’s a paper by Lynne Phair and Jill Manthorpe from the Social Care Workforce Research Unit at King’s College London. The paper describes a study on the knowledge and use of the MCA amongst staff at an acute hospital trust. It wasn’t great news I’m afraid, they found that:
‘Analysis of survey data and interviews revealed limited confidence and knowledge about the Mental Capacity Act 2005 and uncertainties about its relevance to clinical practice. In relation to safeguarding, there was limited realisation of the potential of the Act to uphold the rights of patients lacking capacity and staff responsibilities. MCA training had not made a great impression; hospital policies were inconsistent and lacked coherence.’
The Social Care Workforce Research Unit have produced a number of interesting studies on how the MCA is bedding down which you might like to look at.
A paper by Matthew Gough and Lianne Kerlin discusses the limitations of training on the MCA in residential care homes, and makes a number of recommendations for improvements. They found that training on the MCA in abstract was less likely to be effective, and they cautioned against one-day away-day type training which was divorced from the workplace. Training needs to be ‘bite sized’ and ‘an integral part of work in the workplace’. This is a pretty important finding as, in my experience, many people working in care services will learn about the MCA on an away-day with a large group of other people from other services, provided by external contractors. Whilst this might be a good way to introduce a person to the principles of the MCA, it can be hard to transplant this learning back into the workplace. The MCA requires ongoing critical reflection on workplace dilemmas and practical issues, which will need to be facilitated by (knowledgeable) managers themselves.
There’s a paper by solicitor David Hewitt, and DOLS-obsessives will probably guess what he’s discussing from the title: ‘Objection, purpose and normality: three ways in which the courts have inhibited safeguarding’. Yes, that’s right, it’s a critique of the Court of Appeal’s decisions in Cheshire West and Chester Council v P  and P & Q . Typically, Hewitt has an interesting take on why ‘There is something deeply dubious about the whole issue of normality’, and the paper is well worth reading.
Disabled people and service users have quite different concerns about risk to those of the professionals and the regulatory bodies acting on their behalf. Many people talked of the fear of losing their independence, of asserting their rights and the fear of powerlessness in the face of bureaucracy and (sometimes) uncaring staff.
Faulkner’s article is based on a piece of research she did for the Joseph Rowntree Foundation on service users’ views of risk in adult social care. I am ashamed to say I had missed this piece of research, but I have rectified that now and signed up to the JRF’s email alerts so this embarrassing oversight doesn’t happen again. One of the things I found quite interesting about both papers by Faulkner is the characterisation of the MCA as promoting ‘shared decision making’, when strictly speaking the MCA is a mechanism of substituted decision making – albeit one where the person who “lacks capacity” should be “involved” in the decisions. I spend a lot of time chatting with and reading literature by disability rights campaigners in connection with the Convention of the Rights of Persons with Disabilities (CRPD), where there is a growing rejection of the very concept of ‘incapacity’ and mechanisms like the MCA which permit decisions to be taken on behalf of disabled people by others. I’m always struck by how little these debates have percolated down into domestic disability rights politics. Most disability rights organisations and survivor networks domestically accept the MCA fairly uncritically, and are comfortable distinguishing between those disabled people who “have capacity” and those who don’t. Some push for ‘fusion law’ as a progressive alternative to the Mental Health Act, whereby only people who ‘lack capacity’ could be detained. I’m not saying they’re wrong to hold these views, just that they might want to look into these international debates about Article 12 CRPD in particular, which certainly gave me a lot to think about.
And finally, there is a paper by Alison Brammer discussing the role of the Court of Protection, various challenges it faces (particularly the matter of resources), and various policy issues like the tension between ‘privacy’ and ‘transparency’ in its procedures and publications. It would be a great paper to read if you were new to the Court of Protection and wanted to read something with a little more balance than the usual “secret court” stuff in the newspapers.
So, it’s a great special issue. If (like me), you’re really greedy when it comes to publications on the MCA and the deprivation of liberty safeguards, you might also want to check out the journals Social Care and Neurodisability, Advances in Mental Health & Intellectual Disabilities and Tizard Learning Disability Review which also have a number of interesting articles on those subjects. If you’re not at a university (or a university with access to these), and find the price for an individual article a bit steep, I recently discovered I could get hold of any journal article from my local library for only £3.50 on inter-library loan (and they were usually pre-photocopied for free!). It might be worth checking that out if there’s anything you’re desperate to read.