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Carrying out and recording capacity assessments
- Editors:
- KEENE Alex Ruck, et al
- Publisher:
- 39 Essex Chambers
- Publication year:
- 2021
- Pagination:
- 21
- Place of publication:
- London
The purpose of this document is to provide for social workers and those working in front-line clinical settings an overview of the law and principles relating to the assessment of capacity. Its focus is on (a) how to apply the MCA 2005 principles when assessing capacity; and (b) how to record your assessment, primarily in the context of health and welfare decisions. The courts have now considered questions of capacity on many occasions, sometimes giving guidance as to how the Act should be applied in general terms, and sometimes applying the Act to particular factual scenarios. The guide covers: key principles; what it means to lack capacity to make a decision; fluctuating capacity; good capacity assessment and recording; and useful resources. (Edited publisher abstract)
Guidance note: relevant information for different categories of decisions
- Editors:
- KEENE Alex Ruck, et al
- Publisher:
- 39 Essex Chambers
- Publication year:
- 2021
- Pagination:
- 15
- Place of publication:
- London
This guidance note sits alongside our guidance note on carrying out and recording capacity assessments, and is designed to assist social workers and those working in frontline clinical settings when they asked to consider a person’s capacity to make a decision or decisions. As set out in our guidance note, the courts have now applied the MCA 2005 in respect of very many types of decision. In the course of doing so, they have given indications as to what they consider to be relevant (and sometimes irrelevant) information for purposes of those decisions – i.e. what the person must be able to understand, retain, use and weigh to able to make the decision. This guidance note pulls together the guidance given in relation to some of the most common decisions that are encountered in practice in the context of health and welfare matters. (Edited publisher abstract)
Deprivation of liberty and 16-17 year olds: practice guide
- Authors:
- KEENE Alex Ruck, PARKER C.
- Publisher:
- Research in Practice
- Publication year:
- 2020
- Place of publication:
- Dartington
A practice guide to support health and social care practitioners and managers who work with young people to help them identify the circumstances in which young people may be ‘deprived of their liberty’ and the importance of ensuring that any deprivation of liberty is authorised. It has been created in response to recent case law that provides guidance as to when 16 and 17 year olds are to be considered to be deprived of their liberty and, in particular, the limits of the decision-making role of people with parental responsibility. It does not respond directly to incoming changes in relation to the Liberty Protection Safeguards (LPS). (Edited publisher abstract)
Is mental capacity in the eye of the beholder?
- Author:
- KEENE Alex Ruck
- Journal article citation:
- Advances in Mental Health and Intellectual Disabilities, 11(2), 2017, pp.30-39.
- Publisher:
- Emerald
Purpose: The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity. Design/methodology/approach: Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”). Findings: It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that there is a need to look less at the person being assessed, and more at the person doing the assessing. It is also necessary to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Research limitations/implications: It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgements based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. Also, there is a need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Originality/value: This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD. (Edited publisher abstract)
Overcoming challenges in the Mental Capacity Act 2005: practical guidance for working with complex issues
- Authors:
- Kong Camillia, KEENE Alex Ruck
- Publisher:
- Jessica Kingsley
- Publication year:
- 2018
- Pagination:
- 176
- Place of publication:
- London
This book provides mental capacity practitioners with accessible ethical guidance and applicable tools for applying the Mental Capacity Act (MCA) 2005. It shows how clients' relationships can impact their capacity in positive and negative ways, and which communication skills practitioners can use to enable and empower those with impairment. It also covers how to engage in self-reflection and transparent debate about values to improve the quality of assessments. (Edited publisher abstract)
The role of the Court of Protection in safeguarding
- Authors:
- KEENE Alex Ruck, STRICKLIN-COUTINHO Kelly, GILFILLAN Henry
- Journal article citation:
- Journal of Adult Protection, 17(6), 2015, pp.380-390.
- Publisher:
- Emerald
Purpose: The purpose of this paper is to outline how questions relating to capacity arise in the context of safeguarding, and when applications to the Court of Protection are required in relation to those who may lack capacity. It also seeks to provide guidance as to how applications to the Court of Protection should be made so as to ensure that they are determined effectively and in a proportionate fashion. Design/methodology/approach: The paper draws on the practical experience of practising barristers appearing before the Court of Protection, and on the experience of a social worker who is an MCA/DOLS lead at a London local authority. The paper proceeds by way of a review of the relevant statutory provisions, an overview of the Court of Protection and then to a practical analysis of when and how applications to the Court need to be made. Findings: When to go to the Court of Protection in the safeguarding context is poorly understood, and there has not been proper recognition of the fact that proceedings for “adult care orders” have a strong forensic analogy with applications for care orders in relation to children. It is only by recognising these forensic similarities that local authorities can properly make use of the Court of Protection in the discharge of their obligations to vulnerable adults in their area. Practical implications: The paper should lead to a recognition that there is a specialist “adult protection court” within the Court of Protection, and that applications for adult care orders to that court require specific and careful preparation and presentation. It will therefore lead to better use of the Court of Protection in the safeguarding context and – ultimately – a better balance between empowerment and protection of vulnerable adults who may lack capacity. Originality/value: The paper is original in combining both legal and social work expertise to reach practical conclusions as to why such poor use has been made of the Court of Protection in safeguarding context. Its value lies in the deployment of that expertise to suggest how better use can be made in the future. (Publisher abstract)