My top ten Mental Capacity Act resources

1. Mental Health Law Online (MHLO). MHLO is by far and away the most useful legal resource for mental health and mental capacity law on the net. It’s got everything: statutes, judgments (far more than BAILII for this area of law, and with a very helpful system of indexing by subject, case summaries, links to subsequent and antecedent judgments in the same case, links to any newspaper articles, blogs etc about a case, and even a list of cases with ‘missing’ judgments!), it’s got a glossary of technical terms, links to statistical resources and links to consultations. You can have MHLO send updates to you by email, or to your Kindle, you can pose your questions to a discussion list where you might find answers or a sympathetic ear, it’s got an in-house CPD scheme, job adverts, hell – it’s even got a bookshop. I fully expect this website to start serving me my morning coffee in the new year. The most amazing thing about MHLO is that it’s almost entirely the work of one man, Jonathan Wilson, leading open justice into a brave new digital future.  To help cover the costs of running MHLO,  you can make a donation (see homepage for details).  I couldn’t have done half of my research without this website, long live MHLO! [Update! You can purchase now a very reasonably priced kindle or paperback version of MHLO's annual review for 2012.]

Charlotte Emmett: The significance of capacity assessments for care and residence decisions

I am so pleased to be able to share this guest post by Charlotte Emmett, Senior Lecturer in Law at the University of Northumbria.  Alongside Marie Poole, John Bond and Julian Hughes, Emmett recently published some research on capacity assessment which I would strongly urge everybody with an interest in the Mental Capacity Act to read (Homeward bound or bound for a home? Assessing the capacity of dementia patients to make decisions about hospital discharge: Comparing practice with legal standards.)  Homeward Bound was an ethnographic study which pre-empted to a quite remarkable degree many of the problems identified by Baker J in the recent case CC v KK.  The project was part of the Assessment of Capacity and Best Interests in Dementia Project at Newcastle University, headed by Julian Hughes and funded by the National Institute for Health Research.  In this guest post, Emmett reflects on the significance of capacity assessments about care and residence decisions for older adults.

Every day, decisions are made to discharge older people with dementia from hospital into institutional care. These are often permanent moves. Sometimes they are made voluntarily and sometimes older people lack the mental capacity to express a choice and so health and social care professionals make these decisions for them in their best interests. Studies tell us that a significant number of older people may welcome a move from their own homes into a permanent institutional care, but this isn’t always the case; indeed, relocation can often be the last thing that an older person wants, especially when that person has dementia and declining mental functioning and is already experiencing the discontinuity and disconnect associated with the condition. They may resist the placement, verbally and physically. But they are relocated anyway.

DNAR's and the Mental Capacity Act 2005

This is less a blog post, more a brain splat.  I apologise.  I haven't got the time or mental energy to devote to a proper unpicking of the relationship between 'Do Not Attempt Cardiopulmonary Resuscitation' orders (or DNAR's for short) and the Mental Capacity Act 2005 (MCA).  So I'm just going to pose some questions that trouble me about a couple of recent DNAR cases, and leave them hanging in the air like a bad smell and then scarper.

Let's get the preliminaries out of the way shall we?  DNAR's usually apply only to cardio-pulmonary resuscitation (hence DNACPR) although they can refer to other kinds of resuscitation (hence why I'm sticking with DNAR for the sake of generality).  Just because there's a DNAR order, doesn't mean you'll be refused other life-sustaining treatments, like antibiotics or whatever.  Resuscitation is obviously a form of medical treatment, and as doctors incessantly remind us it's nowhere near as effective as it's portrayed on TV.  If it's not effective, you've lost your chance to peacefully slip away, as the odds are you'll die on a gurney with a doctor breaking your ribs.  Furthermore, if a person is starved of oxygen for a significant duration there are significant odds of brain damage, sometimes extremely severe brain damage.

But, on the other hand, for people who are determined to live, those are odds worth taking.

Three recent DNAR cases

Thought provoking papers on capacity

I came across two fascinating papers this week that I thought I'd share, both of which have interesting implications for that slippery concept we call "mental capacity".  The first was a case report by a medical team who had 'established capacity'* in a patient with partial locked in syndrome (Carrington, S. & Birns, J. (2012) 'Establishing capacity in a patient with incomplete locked-in syndrome', Progress in Neurology and Psychiatry 16(6) p 18-20 - happily the paper is FREE!).  This is one of the first papers I've seen on the communication aspect of mental capacity.  As Tom O'Shea and I were pondering on Twitter, I wonder if this test would have come out differently if the man had been making decisions which his treating team disagreed with.  The paper is also of interest in connection with advance decisions, because whereas before his stroke the man had indicated he would not have wanted to live with partial locked-in syndrome, following his stroke he not only wanted life-sustaining treatment, but he wanted to be resuscitated in the event of cardiac failure.  A lot of the debates surrounding Tony Nicklinson's request for assisted suicide assumed that nobody would want to live in his shoes (yes Polly Toynbee, I am talking about your particularly offensive article), yet a survey conducted last year actually found that a majority of people with locked in syndrome were happy and only a minority wanted to end their lives.  The point (for me) about Nicklinson was about his autonomy to do something non-disabled people would be able to do independently.  We should approach with extreme caution the assumptions people who haven't experienced a condition first hand make about quality of life.  This, of course, has a bearing on the ongoing DNAR debates, but that's another post for another day.

DoLS v Guardianship - redux

It says a lot about the readers of this blog, that one of the most popular posts I've written is an interminably long, three-post, technical discussion of whether guardianship under the Mental Health Act 1983 would be preferable for safeguarding the human rights of people deprived of their liberty than the Mental Capacity Act 2005.  The original posts can be found here, but they are getting a bit creaky and out of date and contained some inaccuracies.  So, given the debates around whether DOLS need replacement are still alive and kicking, I present to you: DoLS v Guardianship - redux (if you can't download that, drop me an email).  Here's the summary: