Paradigm shifts or mirages?
Ruck Keene, A.
Work Stream 6 will consider the legal and clinical evidence that makes the assessment of decision-making capacity in a proportion of cases contested or hard. It aims to advance satisfactory resolutions and educational interventions. This research is led by Dr Gareth Owen and barrister/academic Alex Ruck Keene.
“There is currently a very strong challenge to the “functional” model of decision-making capacity (‘DMC’) embedded in many legislative systems, including those in England & Wales and Scotland. At its highest, and as put by the Committee on the Rights of Persons with Disabilities, the challenge is that “[m]ental capacity is not, as is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.”
We start from the point that there are circumstances under which individuals are (either temporarily or permanently) factually incapable of making decisions, and that mechanisms will always be required to respond to such factual incapacity – even if they are in due course retooled to focus on supporting the legal capacity of the individual. For an overview of some of the debates in this area, see the early research article by Alex Ruck Keene, one of the members of the team.
There is no doubt, though, that there are many cases that arise under the current legislative regimes designed for this purpose whose resolution is difficult, and where outcomes at present – whether inside or outside the court room – all too often seem unsatisfactory.
This work stream will lay the groundwork for a large-scale test as to whether an educational intervention can lead to more satisfactory assessment in these cases. The model of such intervention, to be developed in conjunction with individuals with lived experience, is one which will be tailored to the current English legal regime (the Mental Capacity Act 2005) but which will be capable of adaptation to any framework where responses are needed to factual incapacity.
In the first year of the project, and as work which is well underway, we are analysing all reported cases from the Court of Protection in England and Wales where factual incapacity has been in issue or substantively considered. Through study – informed by the experience of a barrister practising before the Court – we are creating an initial typology of hard cases, as well as a body of evidence against which to test hypotheses of what constitutes a satisfactory assessment. We will, further, stress test that typology and add to that body of evidence by examining reported cases from Scotland and New Zealand for relevant differences arising out of their similar, but not identical legislative frameworks.
In the next phase of the project starting in 2018, we will refine the typology by purposeful sampling of “hard” cases from non-court settings using interviews with liaison psychiatrists, social workers and legal practitioners from all three jurisdictions. We will also interview current and retired members of the judiciary in England and Wales who are or have been responsible for making the final determination of mental capacity for purposes of the Mental Capacity Act 2005.
Our sampling will continue until it becomes possible to construct a properly robust “typology” of contested/hard DMC assessment. Separately, the evidence gathered in our interviews will enable us to continue to refine our hypotheses as to what might be considered satisfactory resolution of such cases.
Throughout this first two phases of our project, we will also draw upon, and feed into, the work of the other limbs of the Mental Health and Justice project, in particular WS1 on supportability of decision-making, WS2 on the role of cultural context and WS4 on insight.
The final phase of the project, over its last 18 months, will take all the work that we have done to date to produce the pilot for an educational intervention. An expert advisory group (including service user, legal and clinical expertise) will be assembled to develop and critique the approach used in the intervention, likely to be based on a eLearning platform requiring participants to be assess capacity in vignettes based on written and video material. Service user participation will be critical at this stage to ensure that any intervention does not simply seek to teach professionals to replicate a gold standard reflecting the views of the project team.
The tools for assessing the success of such intervention will be developed and refined in stress-testing, and the building blocks for a trial of the intervention put in place with a view then to securing further funding to undertake it.
The primary goal of the project is to produce an educational intervention which can probably be tested against the hypothesis that such will lead to more satisfactory capacity assessments being carried out by key players under the Mental Capacity Act 2005. Secondary outputs will include research papers and articles drawing upon the research conducted at the earlier stages of the project, which will be both descriptive and – where relevant – critical of current practice. An early example is the article by Alex Ruck Keene noted above.
Clinical senior lecturer at the Institute of Psychiatry, Psychology and Neuroscience, KCL and honorary consultant psychiatrist. Gareth has expertise in mixed methods, psychiatric phenomenology, mental health, ethics and law as well as policy. He will lead on Work Stream 3 and Work Stream 6 and contribute widely across the research network.
Barrister at 39 Essex Street Chambers and visiting research fellow at the Dickson Poon School of Law, KCL. Alex has expertise in mental health and capacity law, policy and guidelines. He will work as a senior legal researcher on Work Stream 6. He will also provide legal monitoring of advance directive implementation and legal analysis for Work Stream 3. He will contribute widely across the research network and lead on links with legal professional groups in the UK and New Zealand.
Senior investigator, Department of Bioethics, National Institute of Health, USA. Scott has interests in decision-making capacity and methodological issues in empirical bioethics research. He will conduct research within Work Stream 6 and contribute widely across the research network.