Balancing autonomy and risk: a failure of nerve in England and Wales?

Mental capacity in practice part 1: how do we really assess capacity?

Significant problems exist in understanding and implementing the Mental Capacity Act 2005 (MCA) despite it having been in place in England and Wales for more than 15 years. Although many guidelines exist on the assessment of capacity, it is difficult to apply such guidance in practice, given the complexity of actual situations. We may know the stages of the test for capacity, but do we really understand what they mean and how to assess them? In this, the first of two articles examining the MCA and challenges in its application, we add to existing legal guidance to explore capacity assessment in detail using a clinical scenario, and use case law and case studies to illustrate the subtleties and difficulties that may arise.

Assessment of mental capacity to consent to treatment in anorexia nervosa: A comparison of clinical judgment and MacCAT-T and consequences for clinical practice

Informed consent requires adequate mental capacity to consent to treatment. Mental capacity (MC) to consent to treatment refers to the ability to make medical decisions. MC is assessed in a general psychiatric interview, but this clinical assessment is known to overestimate mental capacity in patients and the inter rater reliability is low. The MacArthur Competence Assessment Tool for Treatment (MacCAT-T) has emerged as the gold standard to assess mental capacity to consent to treatment. The MacCAT-T is a semi-structured interview designed to aid clinicians in this assessment and has shown good inter rater reliability in patients with schizophrenia and other mental disorders, but has hardly been studied in patients with anorexia nervosa. Patients with anorexia nervosa (AN) regularly avoid treatment, even when severely ill and discussion includes assessing MC to consent to treatment. The aim of this study is to compare clinical judgment and the MacCAT-T in evaluating MC in patients with AN which in turn may influence use of the MacCAT-T in daily practice. In a sample of 70 consecutively referred severely ill patients with AN with a mean BMI of 15.5 kg/m² and a mean duration of illness of 8.6 years, clinical assessment of MC by experienced psychiatrists and the outcome of the MacCAT-T interview were compared. Agreement (κ-value) was calculated. Agreement between clinical assessment and outcome of the MacCAT-T was questionable (κ 0.23). Unlike in other psychiatric populations, clinicians judged a high proportion of patients with AN as having diminished MC. The MacCAT-T can be useful in assessing MC in AN when used in addition to clinical judgment to aid clinicians in complex cases. Why clinicians judge a relatively high proportion of patients with AN as having diminished MC, in contrast to lower proportions in other psychiatric disorders, is an area in need of further research.

Humility when responding to the abuse of adults with mental disabilities

Legal theorists often reduce the ethics of responding to the abuse of another person to a clash between the principles of autonomy and protection. This reduction is a problem. Responding to suspected abuse requires humility - the potential responder must be aware of and respect their own limits - but humility cannot be usefully reduced to protection and autonomy. Using examples from the Court of Protection of England and Wales, this article examines the different ways that someone responding to abuse should respect their own limits, and suggests that a failure to do so will disproportionately affect people with mental disabilities. It is therefore necessary to attend to whether the law fosters humility among those who respond to abuse, although this must be tempered by humility about legal reform itself. Finally, the article shows how attention to humility can assist the interpretation of Article 16 of the UN Convention on the Rights of Persons with Disabilities; and suggests that, so interpreted, the Convention may help to promote humility when responding to abuse.

Community treatment orders: background and implications of the OCTET trial

Community treatment orders (CTOs) were introduced into the UK despite unconvincing international evidence for their effectiveness. The Oxford Community Treatment Order Evaluation Trial (OCTET) is a multisite randomised controlled trial of 333 patients with psychosis conducted in the UK. It confirms an absence of any obvious benefit in reducing relapse despite significant curtailment of liberty. Community mental health teams need to seriously consider whether they should continue using CTOs or shift their clinical focus to strengthening the working alliance.

Why community compulsion became the solution - Reforming mental health law in Sweden

The aim of this article is to understand how compulsory community care (CCC) has become a solution in mental health policy in so many different legal and social contexts during the last 20 years. The recent introduction of CCC in Sweden is used as a case in point, which is then contrasted against the processes in Norway, England/Wales and New York State. In Sweden, the issue of CCC was initiated following high-profile acts of violence. Contrary to several other states, there was agreement about the (lack of) evidence about its effectiveness. Rather than focusing on dangerousness, the government proposal about CCC was framed within an ideology of integrating the disabled. The new legislation allowed for a broad range of measures to control patients at the same time as it was presented as a means to protect positive rights for patients. Compared to previous legislation in Sweden, the scope of social control has remained largely the same, although the rationale has changed - from medical treatment via community treatment and rehabilitation, to reducing the risk of violence, and then shifting back to rehabilitation in the community. The Swedish approach to CCC is similar to Norway, while New York and England/Wales have followed different routes. Differences in ideology, social control and rights orientations can be understood with reference to the general welfare and care regimes that characterize the four states.

Regaining mental capacity for treatment decisions following psychiatric admission: a clinico-ethical study

BACKGROUND

Mental capacity is an emerging ethical legal concept in psychiatric settings but its relation to clinical parameters remains uncertain. We sought to investigate the associations of regaining capacity to make treatment decisions following approximately 1 month of in-patient psychiatric treatment.

METHOD

We followed up 115 consecutive patients admitted to a psychiatric hospital who were judged to lack capacity to make treatment decisions at the point of hospitalization. We were primarily interested in whether the diagnosis of schizophrenia and schizoaffective disorder associated with reduced chances of regaining capacity compared with other diagnoses and whether affective symptoms on admission associated with increased chances of regaining capacity. In addition, we examined how change in insight was associated with regaining capacity in schizophrenia, bipolar affective disorder (BPAD)-mania, and depression.

RESULTS

We found evidence that the category of 'schizophrenia or schizoaffective disorder' associated with not regaining capacity at 1 month compared with BPAD-mania [odds ratio (OR) 3.62, 95% confidence intervals (CI) 1.13-11.6] and depression (OR 5.35, 95% CI 1.47-9.55) and that affective symptoms on admission associated with regaining capacity (OR 1.23, 95% CI 1.02-1.48). In addition, using an interaction model, we found some evidence that gain in insight may not be a good indicator of regaining capacity in patients with depression compared with patients with schizophrenia and BPAD-mania.

CONCLUSIONS

We suggest that clinico-ethical studies using mental capacity provide a way of assessing the validity of nosological and other clinical concepts in psychiatry.

Managing patients without their consent: a guide to recent legislation

Patients who do not consent to treatment are frequently encountered in the general hospital setting. Issues of personal autonomy, best interests, mental health and capacity need to be carefully considered in these cases. This article summarizes recent changes in the law governing the management of patients who do not, or cannot, consent.

Mental capacity and psychiatric in-patients: implications for the new mental health law in England and Wales

BACKGROUND

In England and Wales mental health services need to take account of the Mental Capacity Act 2005 and the Mental Health Act 1983. The overlap between these two causes dilemmas for clinicians.

AIMS

To describe the frequency and characteristics of patients who fall into two potentially anomalous groups: those who are not detained but lack mental capacity; and those who are detained but have mental capacity.

METHOD

Cross-sectional study of 200 patients admitted to psychiatric wards. We assessed mental capacity using a semi-structured interview, the MacArthur Competence Assessment Tool for Treatment (MacCAT-T).

RESULTS

Of the in-patient sample, 24% were informal but lacked capacity: these patients felt more coerced and had greater levels of treatment refusal than informal participants with capacity. People detained under the Mental Health Act with capacity comprised a small group (6%) that was hard to characterise.

CONCLUSIONS

Our data suggest that psychiatrists in England and Wales need to take account of the Mental Capacity Act, and in particular best interests judgments and deprivation of liberty safeguards, more explicitly than is perhaps currently the case.

Mental capacity to make decisions on treatment in people admitted to psychiatric hospitals: cross sectional study

OBJECTIVE

To estimate the prevalence of mental capacity to make decisions on treatment in people from different diagnostic and legal groups admitted to psychiatric hospital.

DESIGN

Cross sectional study.

SETTING

General adult acute psychiatric inpatient units.

PARTICIPANTS

350 consecutive people admitted to psychiatric wards from the community over 16 months.

MAIN OUTCOME MEASURE

Mental capacity assessed by clinical interview and the MacArthur competence assessment tool for treatment.

RESULTS

Estimates of mental capacity were obtained on 97% (n=338) of the 350 people admitted. Of those an estimated 60% (95% confidence interval 55% to 65%) lacked mental capacity to make decisions on treatment. This proportion varied according to diagnosis, ranging from 97% (n=36) in people with mania to 4% (n=24) in people with personality disorder. Mental incapacity was common in patients admitted informally to the psychiatric wards (n=188; 39%, 32% to 46%). Incapacity and detention are closely associated under non-capacity based mental health law.

CONCLUSIONS

Mental incapacity to make decisions on treatment is common in people admitted to psychiatric wards from the community but cannot be presumed. It is usual in those detained under the Mental Health Act and common in those admitted voluntarily.

CQ Sources/Bibliography

These CQ Sources were compiled by Bette Anton.