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Purpose The purpose of this paper is to consider the role of social work professional evidence in mental capacity law, specifically Court of Protection proceedings. The authors analyse how social workers perform as evidence givers in this domain and how social work as a profession is perceived alongside other professions within the context of adult social care decision-making in mental capacity law. Design/methodology/approach This paper draws on textual evidence from judgments and existing empirical data published elsewhere. The authors consider the contribution of social work professional expertise to best interests decision-making in formal legal proceedings which, in turn, reflects on how social work expertise is relevant in everyday practice. Findings The findings of this paper include that social workers are well placed to be experts on best interests decision-making in mental capacity law. However, the authors show that the Court of Protection has not always endorsed this form of social work expertise in its judgments, meaning that social workers can struggle to articulate an expert knowledge base. Originality/value Overall, the authors conclude that social work evidence is incredibly valuable as expertise about the person’s best interests, particularly in the domain of welfare cases and care planning.

Kitab Undang-Undang Hukum Perdata regulates that an adult, who is in a continuous state of simple-mindedness, insanity or rage, shall be placed under conservatorship, notwithstanding that he might have mental capacity from time to time (mental disabilities). Similiar to that, Undang-Undang Penyandang Disabilitas regulates that people with disabilities can be declared as incapable of the law and placed under conservatorship by court judgment. The consequence of that conservatorship is an individual placed in conservatorship has no legal capacity and prohibited to do any legal action by themself. The perspective that be used in that two regulations and some court judgments in giving conservatorship is substituted decision making which the conservator substitutes the position of an individual placed in conservatorship. This concept actually is no longer appropriate with the new paradigm brought by CRPD, supported decision making. This issue makes the researcher did a normative research by using some secondary data as regulations and also some conservatorship court judgment. Based on the research, the researcher found that the regulations and some conservatorship court judgment do not support the efforts to fulfill the rights of person with disabilities to got an equality before the law especially to make any decisions.

Robots are being used to socially interact with humans. To enhance the quality of human-robot interaction, engineers aim to build robots with both a humanlike appearance and high mental capacity, but there is a lack of empirical evidence regarding how these two characteristics jointly affect people’s emotional response to robots. The current two experiments (each N = 80) presented robots with either a mechanical or humanlike appearance, with mental capacities operationalized as low or high, and with either self-oriented mentalization to mainly concentrate on the robot itself or other-oriented mentalization to read others’ minds. It was found that when the robots had a humanlike appearance, they were more dislikeable than when they had a mechanical appearance, replicating the uncanny valley effect for appearance. Importantly, given a humanlike appearance, robots with high mental ability elicited stronger dislike than those with low mental ability, showing an uncanny valley effect for mind, but this difference was absent for robots with a mechanical appearance. In addition, this effect was limited to robots with self-oriented mentalization ability and did not extend to robots with other-oriented mentalization ability. Hence, the exterior appearance and interior mental capacity of robots interact to influence people’s emotional reaction to them, and the uncanny valley as it pertains to the mind depends on the robot’s appearance in addition to its mental ability. This implies that social robots with humanlike appearances should be designed with obvious other-directed social abilities to make them more likeable.

When is it lawful not to resuscitate and when is it unlawful? What is the meaning of mental capacity on the part of the patient and what is meant by patient autonomy? What is the extent of clinical discretion in decisions not to resuscitate? Does the presumption in favour of life still obtain? What about the risks in cardiopulmonary resuscitation? What have the judges decided about decisions not to resuscitate, and what is the contemporary role of the doctor in this area? Is there any need for change or reform?

Background The assessment of patients’ decision-making capacity is ubiquitous in contemporary healthcare. This paper examines the ethics of undisclosed probing of capacity by psychiatrists. The discussion will refer to the law in England and Wales, though the highlighted issues are likely to be relevant in similar jurisdictions. Main text Decision-making capacity is a private attribute, and patients may not necessarily be aware that one of their personal abilities is being explored. Routine exploration of capacity has not historically been a part of psychiatric examination, but it is now difficult to avoid during psychiatric interview.Ethical practice and shared decision-making require patients to be aware that their decision-making may be evaluated by the doctor at some point, and the potential implications of an objective professional conclusion of incapacity. Case law directs that patients should be informed about any assessment of their decision-making ability, though the extent to which this has translated into practice is unclear. However, explanation about the assessment may cause a patient to react negatively, which may impede therapeutic engagement and constitute an ethical dilemma. It is argued that in the absence of systemic measures, professionals should retain the discretion to decide whether a particular patient should be informed about the impending probe into their decision-making ability, or not. In the latter instance, concealment of information about the assessment or its purpose should be subject to the caveats and safeguards associated with any recourse to therapeutic exception. Conclusion The necessity to mandatorily inform patients about assessment of their capacity introduces a novel ethical dilemma for psychiatrists. The negotiation of this dilemma should not be the prerogative of the clinician, and requires systemic initiatives to ensure universal awareness of patients about the possibility of their capacity being assessed during their journeys through healthcare systems.

Purpose Deprivation of Liberty Safeguards (DoLS), as part of the Mental Capacity Act 2005 (DoLS, 2007), was established to provide a legal framework for decision-making in respect of adults who lack capacity to make decisions in relation to their care and residence in England and Wales. The purpose of this study was to explore the DoLS decision-making process from the perspectives of health and social care practitioners when working with individuals with an acquired brain injury (ABI). Design/methodology/approach A total of 12 health and social care practitioners were interviewed in 2019–2020 about their experiences of using and making or supporting decisions in the DoLS framework with ABI survivors. Data were analysed, and a tentative explanation of variations in DoLS decision-making was developed. Findings Three distinct approaches emerged capturing different decision-making styles (risk-averse, risk-balancing and risk-simplifying) which appeared to influence the outcome of DoLS assessments. A range of mediating factors seemed to account for the variability in these styles. The wider contextual challenges that impact upon practitioners’ overall experiences and use of DoLS processes in their ABI practice were noted. Research limitations/implications The findings highlight a need for changes in practice and policy in relation to how DoLS or similar processes are used in decision-making practice with ABI survivors and may be relevant to the implementation of the Liberty Protection Safeguards that are replacing the DoLS system. Originality/value To the best of the authors’ knowledge, this is the first study to explore accounts of DoLS decision-making practices in ABI service.

According to what we propose to call “the competence model,” competence is a necessary condition for valid informed consent. If a person is not competent to make a treatment decision, the decision must be made by a substitute decision-maker on her behalf. Recent reports of various United Nations human rights bodies claim that article 12 of the Convention on the Rights of Persons with Disabilities involves a wholesale rejection of this model, regardless of whether the model is based on a status, outcome, or functional approach to competence. The alleged rationale of this rejection is that denying persons the right to make their own treatment decisions based on an assessment of competence necessarily discriminates against persons with mental disorders. Based on a philosophical account of the nature of discrimination, we argue that a version of the competence model that combines supported decision-making with a functional approach to competence does not discriminate against persons with mental disorders. Furthermore, we argue that status- and outcome-based versions of the competence model are discriminatory.

The doctrine of consent (or informed consent, as it is called in North America) is built upon presumptions of mental capacity. Those presumptions must be tested according to legal rules that may be difficult to apply to COVID-19 patients during emergency presentations. We examine the principles of mental capacity and make recommendations on how to assess the capacity of COVID-19 patients to consent to emergency medical treatment. We term this the CARD approach (Comprehend, Appreciate, Reason, and Decide).

The institution of restriction of freedom for the purposes of protection is regulated as a guardian-ship measure under the Turkish Civil Code (TCC), and under conditions specified in Article 432 of TCC, it allows compulsory placement or detainment in a certain establishment of individuals in need of personal protection. Restriction of freedom by compulsory placement/detainment in a particular establishment aims to protect the relevant individual needs. Such restriction requires the need for protection to arise from the causes of weakness listed under Article 432 of TCC. This measure, which was first introduced into Turkish Law by the TCC numbered 4721, is regu-lated within the guardianship provisions; however, it serves for the protection of the society ra-ther than the protection of the person concerned due to its conditions of implementation. It seems that the legislator stipulates the protection for instances where the person concerned also poses a threat to society. Furthermore, restriction of freedom due to an extremely dangerous in-fectious disease serves, in itself, the purpose of protecting society. Implementation of forced treatment is not regulated under these provisions even though forced treatment is a feasible method to overcome the need for protection specifically when this need is due to lack of mental capacity. The absence of provisions regarding forced treatment may result in lifelong detainment of individuals who lack mental capacity. The reasons stated so far reveals that the institution of restriction of freedom for protection and, in particular, its conditions for implementation must be revised following the objectives of the guardianship institution. Hence, this study aims to evalu-ate the conditions set forth under Article 432 of TCC within this context.

Background: Autonomy is a key ethical principle in healthcare, giving patients the right to be involved in their own care. Allowing patients to make decisions based on their own values and beliefs is a fundamental aspect of evidence-based practice. Professional autonomy allows paramedics to make critical decisions around patient care in an emergency, enabling them to provide life-saving treatment. A patient's autonomy can conflict with that of a paramedic, leading to complex ethical situations which can affect the way a paramedic performs their duty of care. Decision-making is a fundamental skill for paramedics and often in the prehospital setting, paramedics have to manage situations with a certain degree of risk if they are to manage patients effectively and safely, while respecting patients' legal and ethical rights. Case presentation: An ambulance crew were called to attend a 62-year-old woman with a history of chronic obstructive pulmonary disease, respiratory arrest and stage 2 respiratory failure, who had breathing difficulties. She was deemed to have capacity by the ambulance crew under the Mental Capacity Act. The patient refused to be taken to hospital for treatment against paramedic recommendation, as she wished to receive no further treatment or hospital admission and wanted to die at home. The ambulance crew referred her to her GP. Conclusions: Paramedics experience great difficulties in making decisions, as information and alternative treatment options are often limited in the prehospital setting. One major limitation to autonomy is where an autonomous patient is refusing life-saving treatment. This can create ethical dilemmas for paramedics, leaving them to feel a sense of vulnerability and anxiety around performing their duty of care. The law is clear: an autonomous patient's decision to refuse treatment, even if it may seem unwise, must be respected in accordance with the Human Rights Act 1998.

PurposeThe purpose of this study is to inform those who are supporting persons who are dying and are responsible for planning, commissioning or delivering palliative care about the need to support and maximise the decision-making ability and choices of persons with advanced dementia or severe frailty.Design/methodology/approachThis article will consider the legal and human rights principles applicable to Scotland, and indeed to other jurisdictions, which govern decisions about care and treatment of persons with and without capacity and the application of these principles to palliative care situations.FindingsIt is important that those involved in the care and support of the dying are fully aware of the need to support and maximise their decision-making ability concerning palliative care and treatment choices.Research limitations/implicationsIt is a well-established legal and human rights principle that the decisions of a person with capacity must be respected, including decisions about palliative care and treatment at the end of life. Moreover, recent developments in international human rights law reinforce the message that this principle applies equally to all. Applying this principle into persons with advanced dementia or severe frailty therefore requires skilled assessment and supported decision-making in order to optimise capacity and respect autonomy.Originality/valueThe discussion applies the United Nations Convention on the Rights of Persons with Disabilities approach concerning equality of rights enjoyment and supported decision-making to palliative care and treatment situations.

This paper examines the Court of Protection decision in Briggs v Briggs. It considers whether the approach of the Court, which gave effective decisive weight to a patient’s previously expressed wis...

Purpose: To evaluate the usability and acceptability of the Mental Capacity Assessment Support Toolkit (MCAST) in healthcare settings and whether its use was associated with increased legal compliance and assessor confidence. Materials and methods: A mixed methods convergence triangulation model was used. Multidisciplinary professionals used the MCAST during mental capacity assessments for UK hospital patients with diagnoses of stroke or acute or chronic cognitive impairment. Changes in legal compliance were investigated by comparing scores on case note audits before and after implementation of the MCAST. Changes in assessor confidence and professionals’ perceptions of the MCAST’s usability and acceptability were explored using surveys. Patients’ and family members’ views on acceptability were determined using semi-structured interviews. Data were integrated using triangulation. Results: Twenty-one professionals, 17 patients and two family members participated. Use of the MCAST was associated with significant increases in legal compliance and assessor confidence. Most professionals found the MCAST easy to use and beneficial to their practice and patients. Patients and family members found the MCAST materials acceptable. Conclusions: The MCAST is the first toolkit to support the needs of individuals with communication disabilities during mental capacity assessments. It enables assessors to deliver high quality, legally compliant and confident practice. IMPLICATIONS FOR REHABILITATION Mental capacity assessment practice needs to be improved to maximise patient autonomy, safety and well-being. The MCAST is a paper-based toolkit designed to facilitate and improve mental capacity practice in England and Wales. This study suggests the MCAST would be easy and acceptable to use in healthcare settings and could lead to improvements in assessment quality and assessor confidence.

In psychiatric practice, professionals tend to split patients into those who are responsible for their actions, and those who are not. This approach does a disservice to both groups. Patients assumed to retain agency may be blamed, and those assumed to lack agency are disempowered. Professionals should adopt a more nuanced approach to agency and control, recognising that it is impaired in most psychiatric disorders, but absent in very few. This is possible without making stigma worse.

SUMMARYThere is much Mental Capacity Act 2005 (MCA) case law emanating from the Court of Protection. This article reviews an important and unique case when the court specifically addressed for the first time the question of fluctuating capacity, a not uncommon clinical problem that can often be complex. It describes how the Court of Protection in Royal Borough of Greenwich v CDM [2019] legally approached an issue of fluctuating capacity in a 64-year-old woman with a personality disorder and chronic diabetes. In doing so it elucidates a new conceptual framework to apply when assessing fluctuating capacity in terms of considering micro- and macro-decisions which can be used in routine clinical practice.

To explore processes used by qualified nurses in assessing mental capacity of acutely and critically ill hospitalised adult patients.Mental capacity is the ability to understand, reason and make decisions. Acute and critical illness may impact upon the decision-making abilities of hospitalised adult patients but little is known about how qualified nurses across a range of acute settings assess the capacity of such patients in their care.A qualitative grounded theory approach informed by the Corbin and Strauss (Basics of Qualitative Research (Third Edition). London, UK: Sage, 2008) methodological pathway.Data were collected through digitally recorded, semi-structured interviews to explore assessment of capacity processes used by 13 registered nurses employed in acute and critical care environments in a district general hospital in South Wales, UK. Data were analysed using iterative constant comparative processes leading to a core category and grounded theory. The study is presented in accordance with the COREQ checklist.Informal, intuitive, holistic nurse-led processes were used to assess the mental capacity of patients which combined processes for the assessment of their physiological and mental capacity status, recognising the need to support their rights, dignity and autonomy. The assessment of mental capacity was not a lone process but one that contributed to a cyclical process in which multi-professional assessment was necessary and ongoing, and in which qualified nurses had a co-ordinating role. This led to the development of the theory, Nurse Managed Patient Focused Assessment and Care.This theory provides a framework to explain processes and strategies used by qualified nurses in assessing mental capacity of, and caring for, adult patients with acute and/or critical illness.This framework may inform related clinical practice and can serve as a basis of an assessment tool in what has been identified as a fundamental role of the qualified nurse.

Context: Advance directive (AD) is being used in psychiatric care in developed countries for the last two decades. Although the AD is bound to offer patient autonomy and beneficence, evidence for its effectiveness and feasibility are limited. By the enactment of the Mental Health Care Act, 2017, India is going to implement AD. Aims: This study aimed to find perspectives on AD in psychiatric practice by different stakeholders in Kerala, India. Subjects and Methods: A qualitative study using focus group discussion and in-depth interview was done among mental health service users such as patients and carers, providers such as psychiatrists, clinical psychologists and psychiatric social workers, and advocates. Transcribed information was coded by R package for Qualitative Data Analysis, a free software. Results: The predominant themes identified were freedom of choice, issues of documentation, suitability in a crisis, apprehension about future care, mental capacity at the time of making the AD, issues about nominated representative, limitations in the exercise of treatment options by doctors, and the possibility of defensive practice in psychiatry. Half of the patients supported the AD, whereas the other half did not. Advocates agreed that patients should be given the freedom to choose and hence supported the AD. Some mental health service providers favored AD, whereas others were apprehensive. Conclusions: Although ADs help patients in preserving their autonomy, many uncertainties, practical issues, and legal issues are to be tackled for its effective implementation.

Toby has 26 years’ experience of working with people with severe mental health problems, and expertise in the fields of mental health in later life, dementia, and mental capacity, with an empha- sis on self-management, peer support, quality of life, rights, social inclusion and empowerment. Toby has written articles on values-based practice (VBP), co-authored a book on values-based prac- tice and mental health and mental capacity law for psychiatric nurses, produced VBP ‘key card’ information for the social care workforce throu- gh Skills for Care and is currently co-authoring a book on VBP and dementia. He is also a part time lecturer on a Masters course in dementia care at the University of West London (UWL). werment. Toby has written articles on values-based practice (VBP), co-authored a book on values-based prac- tice and mental health and mental capacity law for psychiatric nurses, produced VBP ‘key card’ information for the social care workforce throu- gh Skills for Care and is currently co-authoring a book on VBP and dementia. He is also a part time lecturer on a Masters course in dementia care at the University of West London (UWL).

In Re: AB (Termination of Pregnancy), the Court of Appeal was asked to consider an assumption made about the future living arrangements of a pregnant patient, and the weight to be ascribed to her wishes and feelings when she had no real understanding of her predicament. This commentary explores the importance of taking into account the perspective of the patient, even if suffering from a mental disorder, and it will analyse the existing common law to show that the weaker the ability of the patient to form her own wishes and feelings, the more appropriate it would be to rely on the remaining evidence.

Those with mental illness, learning disabilities, and speech and language difficulties continue to be over represented in the global criminal justice system, create immense difficulties for these individuals in navigating the system itself, and the prison environment, and contribute to the revolving door of incarceration. Very little is known with regard to the situation of the mentally ill and mentally incapacitated in African criminal justice systems. In this Commentary we discuss how the Criminal Procedure Act in South Africa still does not fully comply with the or the Protocol to the African Charter on the Rights of Person with Disabilities in criminal proceedings. An urgent review of due process is warranted where the existence of capacity based defense needs are to be considered. It is vital to distinguish between intellectual and psycho-social disability, regarding assessment and issuance of appropriate court orders to the specific needs of the person, the identified disability and the interest of justice. Consistency in mental capacity or illness assessment using validated screening tools and specialist expert reports provided to the court should comply with the general requirements of expert evidence.

Consent to treatment is a common, albeit complex, aspect of nursing practice. Over the past few years, laws have been strengthened to provide increased recognition of patient autonomy. This has meant that there is a greater onus placed on nurses to understand how consent is obtained from patients, the elements required to ensure any consent is valid, and how to proceed when it has been determined that a patient does not have the mental capacity to consent to treatment. This article explores some of the legal considerations that nurses should keep in mind when seeking consent from a patient.

The Mental Capacity Act 2005 governs personal decision-making for adults. It incorporates five overarching principles, including that incapacity may not be inferred merely from a person's unwise decisions and that where a person lacks capacity decisions must be made in her best interests. Through analysis of judicial treatment of unwisdom, best interests, subjectivity and objectivity, considered against parliamentary debates on the Mental Capacity Bill and philosophical critique of ideas of (un)wisdom, we argue that these principles are problematically irreconcilable. The Act's radical under-specificity means, paradoxically, that this comes to be resolved through abstracted values, rather than the centricity of the person herself.

The Court of Protection, established under the Mental Capacity Act 2005 , exists to support those without the ability to manage their own affairs. Nicholas Endean explains its powers regarding property and financial affairs, as well as issues relating to health and welfare

Cases of severe and enduring Anorexia Nervosa (SEAN) rightly raise a great deal of concern around assessing capacity to refuse treatment (including artificial feeding). Commentators worry that the ...

The four pillars of medical ethics – autonomy, beneficence, non-maleficence and justice – provide a clinical framework for decision-making. Usually the patient has capacity for making decisions based on being given accurate information in a format that is understandable and applicable to their situation. The Mental Capacity Act 2005 has created a legal framework for decision-making when people may lack capacity. Capacity may fluctuate, may be partly impaired and must be carefully assessed when all efforts to support a person to make their own decision have failed. Capacity assessment must evaluate functional capacity, which is time and decision specific. When a person lacks capacity a decision must be taken that is in their best interests, and accords as much as possible with their wishes, feelings, values and beliefs.

Self-control has been defined as the mental capacity of an individual to alter, modify, change or override their impulses, desires, and habitual responses. In this review, we will discuss the bi-directional nature of the relationship between self-control and exercise. In brief, higher levels of trait self-control have been associated with greater exercise performance and adherence; whilst the depletion of state self-control has been shown to decrease performance and persistence on subsequent exercise tasks requiring self-control. In the opposite direction, long-term participation in exercise (and improved physical fitness) has been demonstrated to enhance self-control. Furthermore, an acute bout of exercise has been shown to enhance subsequent self-control, particularly when the exercise is of a moderate intensity and requires some degree of cognitive engagement. Throughout, when discussing each of these relationships, evidence will be drawn from other aspects of the review, where appropriate, to enhance our understanding of the observed effects. Finally, recommendations for future research will be made; including the importance of considering the bi-directional nature of the relationship, given that this has implications for our understanding of both self-control and exercise performance and adherence.

Despite laudable intentions, since its inception, the Mental Capacity Act 2005 of England and Wales (MCA) has proved to be a controversial piece of legislation. The majority of legal scholarship has concentrated on the problems created by the Act in relation to the treatment of incapacitated patients. However, there is an additional and somewhat unexplored dimension to the MCA, that of research. We argue here that the research provisions of the MCA are poorly drafted and do not provide an appropriate balance between protection and empowerment. We also assert that contrasting obligations and expectations are placed on different parties in the approval process, which creates a blurred sense of responsibility and a potential chilling effect.

Background Research involving adults who lack the capacity to provide informed consent can be challenging. In England and Wales there are legal provisions for consulting with others who know the person with impaired capacity. The role of the ‘proxy’ (or ‘surrogate’) is to advise researchers about the person’s wishes and feelings or to provide consent on the person’s behalf for a clinical trial of a medicine. Information about the study is usually provided to the proxy; however, little information is available to proxies about their role, or the appropriate legal and ethical basis for their decision, to help inform their decision-making. The aim of this study was to analyse the written information that is provided to consultees and legal representatives. Methods Studies including adults lacking capacity to consent which utilised consultees or legal representatives were identified using the UK Clinical Trials Gateway database. A representative sample (n = 30) were randomly selected. Information sheets and other study documents provided to proxies were obtained, and relevant content was extracted. Content analysis was conducted through four stages: decontextualisation of the unit of analysis, recontextualisation, categorisation, and compilation. The data were summarised narratively according to each theme and category. Results Considerable variation was found in the written information sheets provided to proxies. Most directed proxies to consider the wishes and feelings of the person who lacked capacity and to consult with others during the decision-making process. However, a small number of studies extended the scope of the proxy’s role to consider the person’s suitability or eligibility for the study. Particular discrepancies were found in information provided to those acting as consultees or legal representatives in a professional, as opposed to a personal, capacity. Incorrect uses of terminology were frequently found, and a small number of studies inaccurately interpreted the law. Conclusions Despite undergoing ethical review, study documents lacked essential information, incorrectly used terminology, and conflated professionals’ clinical and representation roles. Future recommendations include ensuring proxies are provided with adequate and accurate information which complies with the legal frameworks. Further research is needed to explore the information and decision-making needs of those acting as consultees and legal representatives. Electronic supplementary material The online version of this article (10.1186/s13063-019-3340-5) contains supplementary material, which is available to authorized users.

Qualquer procedimento médico, terapêutico ou interventivo sobre o paciente deve estar voltado à preservação da dignidade da pessoa humana submetida aos instrumentos de manutenção vital. Tratamentos terapêuticos altamente invasivos podem não representar solução adequada ao futuro da restauração física do paciente. Em muitos casos, mesmo após a utilização de vários instrumentos para restauração da capacidade física e mental do paciente terminal, a situação apresentada não justifica a continuidade da utilização dos meios terapêuticos invasivos. Projetos pioneiros no Brasil vêm estabelecendo a implementação de políticas públicas de saúde denominadas de cuidados paliativos. A proposta é garantir a terminalidade da vida com qualidade, livre da dor e em ambiente que respeite a autonomia do paciente. Essa determinação pela não sujeição a tratamentos de prolongamento da vida e da dor, pode ser manifestada em instrumento denominado de diretivas antecipadas de vontade. O modelo, por representar a interrupção ou suspensão dos procedimentos e terapêuticas médicas, permite que a doença siga seu curso normal o que resultará na morte do paciente. Palavras-Chave: Cuidados Paliativos. Direitos Fundamentais. Sistema Único de Saúde.

SummaryThis article reviews a 2017 Court of Protection case which assessed and decided issues relating to the Islamic faith and the Mental Capacity Act 2005. The case involved a 39-year-old Muslim man with learning difficulties. It centred on his ability to make decisions about two specific aspects of his faith – capacity for fasting and for the removal of pubic and axillary hair. The judgment describes how s.4 of the Act was applied in deciding these decisions under the doctrine of best interests. In doing so, it elucidates key principles which can be applied to similar cases of this and other faiths.Declaration of interestNone.

Autism is found to be associated with mind perception, in particular reduced perception of human agency. Prior work has shown that more autistic individuals in the general population tend to view others as less capable of doing and thinking. Autism is, by contrast, not meaningfully associated with the mind attribution to other types of entities examined in past work, including children, nonhuman animals, supernatural agents, and so forth. In this paper, more types of entities—toy objects and selves—were investigated. Across two normal adult samples and a meta-analysis, autism was found to be associated with decreased perception of both experiential and agentic mental capacity in other adult humans, as well as in oneself. More autistic individuals tend to consider others and themselves less capable of both doing and feeling. Autism was also associated with increased mind perception of toy objects, such that more autistic individuals tend to consider toy objects more capable of doing and feeling. These findings partially replicated and meaningfully extended previous work on autism and mind perception, thus providing insight into the relationship of autism with potentially different perceptions and treatments of others, selves, and toy objects.

In many Western countries, especially if they have good palliative care services, dementia is now more feared than cancer and surveys consistently show that most indigenous citizens would not want to continue living once dementia had become severe or even moderately severe. If they were to develop a life-threatening condition at this stage of the illness, most would not want to be resuscitated, yet that is what commonly happens. In Britain and Canada, most would like the option of an advance request for medical assistance in dying (MAID) in the form of euthanasia when dementia reaches a certain degree of severity. That is legal in the Benelux countries but even doctors sympathetic to MAID may find the process difficult. The only alternatives, restricted to people with early dementia, are MAID by medically assisted rational suicide (MARS, available in Switzerland) voluntary euthanasia (available in Benelux countries and probably now Canada) or voluntarily stopping eating and drinking (VSED—legal in most countries) before they lose mental capacity. Surveys also show important differences between religious groups in their attitudes to MAID in all diagnostic contexts after discussing some of the ethical, philosophical, religious and diagnostic issues that MAID raises, and this chapter presents some case histories of patients who chose and received MARS in Switzerland.

The 2005 Mental Capacity Act of England and Wales provides a description in statute law of a test determining if a person lacks “mental capacity” to take a particular decision and describes how the “best interests” of such a person should be determined. The Act established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts. Human rights organisations and others have raised concerns about the nature of assessments for incapacity, including the role of brain investigations and psychometric tests.Aim: Describe use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings.Method: Quantitative review of case law using all CoP judgments published until 2019. The judgments (n = 408) were read to generate a subset referring to structured testing (n = 50). These were then examined in detail to extract the nature of the measurements, circumstances of their use and features of interpretation by the court.Results: The 408 judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. 120/146 (82.2%) referred to “impairment of mind or brain,” with this being part of assessment for incapacity in 58/146 (39.7%). Measurement referred on 25/146 (17.1%) occasions to “functional decision-making abilities.” Structured measures were used most commonly by psychiatrists and psychologists. Psychological measurements comprised 66.4% of measures. Neuroimaging and electrophysiology were presented for diagnostic purposes only. A small number of behavioural measures were used for people with disorders of consciousness. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once. Judges rarely integrated measurements in their capacity determinations.Conclusion: Structured testing of brain and psychological function is used in limited ways in the Court of Protection. Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom.

The emergence of the COVID-19 (coronavirus) pandemic in late 2019 and early 2020 presented new and urgent challenges to mental health services and legislators around the world. This special issue of the International Journal of Law and Psychiatry explores mental health law, mental capacity law, and medical and legal ethics in the context of COVID-19. Papers are drawn from India, Australia, the United Kingdom, Ireland, Germany, Portugal, and the United States. Together, these articles demonstrate the complexity of psychiatric and legal issues prompted by COVID-19 in terms of providing mental health care, protecting rights, exercising decision-making capacity, and a range of other topics. While further work is needed in many of these areas, these papers provide a strong framework for addressing key issues and meeting the challenges that COVID-19 and, possibly, other outbreaks are likely to present in the future.

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is rightly seen as a break from the past in mental capacity law. At the same time, implementation will occur in the specific existing legal and administrative contexts of each State. This article uses English mental capacity law to explore these issues. The English Mental Capacity Act 2005 (MCA) can be considered the best of the “old” paradigm. The article argues that there are continuities between it and a CRPD-compliant approach. These continuities should be built upon. Further, the implementation of the MCA is still in recent memory. The lessons of that implementation will have considerable application to moves toward CRPD compliance. CRPD compliance is not just about specialist stator guardianship régimes. It is also about a myriad of law, currently capacity based, located in specific legal areas such as contract, wills and succession, and criminal law. Reform in these areas will involve not just disability law, but successful integration into those other legal areas, a matter requiring the involvement of those knowledgeable in those other areas. Since change in these areas will involve the removal of disability as a gateway criterion, they will affect the public as a whole, and the thus, determination of the degree and sort of intervention that the broader public will consider appropriate.

This article discusses the importance of residence capacity – an individual’s mental capacity to decide where they should live – and suggests how it should be assessed. People with dementia or intellectual disabilities, as well as those with other mental disorders, are sometimes required to make this decision. Assessments of capacity must be conducted with considerable care, given the implications for the individual and for their human rights. The assessment must be objective and functional: the assessor must be able specifically to demonstrate a lack of decision-making ability. Yet assessments of capacity still require evaluative decisions to be made. We suggest some basic information that should be conveyed to the person faced by the prospect of a change of residence where there is a doubt about capacity.

We investigated the heritability of educational attainment and how it differed between birth cohorts and cultural-geographic regions. A classical twin design was applied to pooled data from 28 cohorts representing 16 countries and including 193,518 twins with information on educational attainment at 25 years of age or older. Genetic factors explained the major part of individual differences in educational attainment (heritability: a(2)=0.43; 0.41-0.44), but also environmental variation shared by co-twins was substantial (c(2)=0.31; 0.30-0.33). The proportions of educational variation explained by genetic and shared environmental factors did not differ between Europe, North America and Australia, and East Asia. When restricted to twins 30 years or older to confirm finalized education, the heritability was higher in the older cohorts born in 1900-1949 (a(2)=0.44; 0.41-0.46) than in the later cohorts born in 1950-1989 (a(2)=0.38; 0.36-0.40), with a corresponding lower influence of common environmental factors (c(2)=0.31; 0.29-0.33 and c(2)=0.34; 0.32-0.36, respectively). In conclusion, both genetic and environmental factors shared by co-twins have an important influence on individual differences in educational attainment. The effect of genetic factors on educational attainment has decreased from the cohorts born before to those born after the 1950s. This study was conducted within the CODATwins project. We thank Wendy Cozen, University of Southern California, for sharing data with us. Funding for collaborators: Netherlands Twin Register acknowledges the Netherlands Organization for Scientific Research (NWO) and MagW/ZonMW grants 904-61-090, 985-10-002, 912-10-020, 904-61-193,480-04-004, 463-06-001, 451-04-034, 400-05-717, Addiction-31160008, Middelgroot-911-09-032, Spinozapremie 56-464-14192; VU University's Institute for Health and Care Research (EMGO+); the European Research Council (ERC - 230374), the Avera Institute, Sioux Falls, South Dakota (USA). Data collection and analyses in Finnish twin cohorts have been supported by ENGAGE - European Network for Genetic and Genomic Epidemiology, FP7-HEALTH-F4-2007, Grant Agreement Number 201413, National Institute of Alcohol Abuse and Alcoholism (Grants AA-12502, AA-00145, and AA-09203 to R J Rose, the Academy of Finland Center of Excellence in Complex Disease Genetics (Grant Numbers: 213506, 129680), and the Academy of Finland (Grants 100499, 205585, 118555, 141054, 265240, 263278 and 264146 to J Kaprio). Since its origin the East Flanders Prospective Survey has been partly supported by grants from the Fund of Scientific Research, Flanders and Twins, a non-profit Association for Scientific Research in Multiple Births (Belgium). Anthropometric measurements of the Hungarian twins were supported by Medexpert Ltd., Budapest, Hungary. The Murcia Twin Registry is supported by Fundacion Seneca, Regional Agency for Science and Technology, Murcia, Spain (08633/PHCS/08, 15302/PHCS/10 & 19479/PI/14) and Ministry of Science and Innovation, Spain (PSI2009-11560 & PSI2014-56680-R). K Silventoinen is supported by Osaka University's International Joint Research Promotion Program. We acknowledge The Swedish Twin Registry for access to data. The Swedish Twin Registry is managed by Karolinska Institutet and receives funding through the Swedish Research Council under the grant no 2017-00641. This research was facilitated through access to Twins Research Australia, a national resource supported by a Centre of Research Excellence Grant (ID: 1079102), from the National Health and Medical Research Council. California Twin Program was supported by The California Tobacco-Related Disease Research Program (7RT-0134H, 8RT-0107H, 6RT-0354H) and the National Institutes of Health (1R01ESO15150-01). The Carolina African American Twin Study of Aging (CAATSA) was funded by a grant from the National Institute on Aging (grant 1RO1-AG13662-01A2) to K. E. Whitfield. Colorado Twin Registry is funded by NIDA funded center grant DA011015, & Longititudinal Twin Study HD10333; Author Huibregtse is supported by 5T32DA017637 and 5T32AG052371. Washington State Twin Registry (formerly the University of Washington Twin Registry) was supported in part by grant NIH RC2 HL103416 (D. Buchwald, PI). Vietnam Era Twin Study of Aging was supported by National Institute of Health grants NIA R01 AG018384, R01 AG018386, R01 AG022381, and R01 AG022982, and, in part, with resources of the VA San Diego Center of Excellence for Stress and Mental Health. The Cooperative Studies Program of the Office of Research & Development of the United States Department of Veterans Affairs has provided financial support for the development and maintenance of the Vietnam Era Twin (VET) Registry. The content of this manuscript is solely the responsibility of the authors and does not necessarily represent the official views of the NIA/NIH, or the VA. The NAS-NRC Twin Registry acknowledges financial support from the National Institutes of Health grant number R21 AG039572. Korean Twin-Family Register was supported by the Global Research Network Program of the National Research Foundation (NRF 2011-220-E00006). Osaka University Aged Twin Registry is supported by grants from JSPS KAKENHI JP (23593419, 24792601, 26671010, 24590695, 26293128, 16K15385, 16K15978, 16K15989, 16H03261).

The coronavirus pandemic, referred to here as Covid-19, has brought into sharp focus the increasing divergence of devolved legislation and its implementation in the United Kingdom. One such instance is the emergency health and social care legislation and guidance introduced by the United Kingdom Central Government and the devolved Governments of Wales, Scotland and Northern Ireland in response to this pandemic. We provide a summary, comparison and discussion of these proposed and actual changes with a particular focus on the impact on adult social care and safeguarding of the rights of citizens. To begin, a summary and comparison of the relevant changes, or potential changes, to mental health, mental capacity and adult social care law across the four jurisdictions is provided. Next, we critique the suggested and actual changes and in so doing consider the immediate and longer term implications for adult social care, including mental health and mental capacity, at the time of publication. Several core themes emerged: concerns around process and scrutiny; concerns about possible changes to the workforce and last, the possible threat on the ability to safeguard human rights. It has been shown that, ordinarily, legislative provisions across the jurisdictions of the UK are different, save for Wales (which shares most of its mental health law provisions with England). Such divergence is also mirrored in the way in which the suggested emergency changes could be implemented. Aside from this, there is also a wider concern about a lack of parity of esteem between social care and health care, a concern which is common to all. What is interesting is that the introduction of CVA 2020 forced a comparison to be made between the four UK nations which also shines a spotlight on how citizens can anticipate receipt of services.

The original semi-structured interview in the research project was to assess discharge destination, which often includes the care required on discharge, and it has been adapted to assess various different questions, such as managing finances, drinking alcohol, admission for care and treatment, treatment decisions, and making or revoking a Lasting Power of Attorney. The semi-structured interview is not to replace the legal test of mental capacity or formal documentation produced by organisations, but it can be used to gain insight into the person’s thought processes and to help the assessment of the four-part functional legal test. There are several methods of assessing someone’s mental capacity, such as using vignettes or a standard questionnaire measure or having a structured conversation. All of these have their place in different circumstances but, when assessing mental capacity around decisions that have serious consequences, one of the most useful and flexible tools to use is a semi-structured interview.

Assessing people’s mental capacity, and potentially making decisions for them, raises strong feelings in professionals that can be linked to their own ethical code and how they view the rights of others. Some people worry about putting someone through a capacity assessment and try not to question someone’s right to make the decision himself, for example, when someone has a strong desire to return home on discharge from hospital. Carrying out an assessment of mental capacity need not have negative connotations. It often gives someone the space and time to discuss his point of view, which he may not have had otherwise, or sometimes to show that he has regained capacity if it was previously found that he lacked capacity to make a decision. Due to the nature of assessing someone’s capacity and potentially taking away her right to make a decision about her own life, numerous ethical issues arise.

Homelessness is on the rise in the UK and, over the past few years, there has been a significant increase in the number of emergency department (ED) attendances and admissions by homeless people. Those attending the ED will often have multiple unmet health, housing and social care needs. While it is not possible to meet all these needs in the ED, emergency nurses should be equipped with the knowledge and skills required to communicate with, refer and signpost patients who are homeless. Under the Homelessness Reduction Act 2017, ED staff have a duty to refer homeless people, with their consent, to local authorities for assistance. This article details the barriers that homeless people may experience when accessing healthcare services and explains how these can be addressed. It also outlines the actions that emergency nurses can take to improve the care of homeless people in the ED at an individual and a systems level.

Introduction ReSPECT is a national initiative led by the Resuscitation Council(UK). It encourages doctors to work in partnership with patients to establish their wishes and thoughts on future treatments should they become unwell. Moving away from old DNAR forms requires a significant culture shift. We replaced these forms at Ashford & St Peter’s Hospital NHS Trust November 2018. In this audit we aimed to assess the success of the rollout of ReSPECT forms hospital-wide in the first 3 months, aiming for more than 98% of patients having a valid form. Methods Retrospective notes audit. The first 10 patients discharged from each ward, including patients who died, were selected for an electronic notes review looking for a ReSPECT form or documented evidence that a ReSPECT form was filled during admission. The presence of a ReSPECT form and the extent to which it was correctly filled out were recorded in a spreadsheet. Results 209 patient records were examined (100 Male, 109 Female) across a mix of surgical and medical wards, average age of 77 years. A total of 87 forms were reviewed, meaning 42% had a ReSPECT form present. Personal/clinical details and summary of emergency care and treatment recommendations were completed 70% of the time. Areas for improvement include mental capacity documentation and section 3 patient personal preferences. Conclusions Although uptake initially appears poor in retrospect our standard of 98% was likely too high, a 42% uptake is a significant achievement for the first 3 months. By identifying areas for improvement we have been able to put in place initiatives to target these specifically. We recognise the need to continue to facilitate a change in culture within our trust and promote shared decision making and ‘the conversation’ as a process not a one off. We will re-audit next year.

In this article, we review current advocacy services for people with dementia in England and Wales (provided, respectively, under the Mental Capacity Act 2005 , the Mental Health Act 1983 /2007 and the Care Act 2014) through the lens of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). We examine what a human rights’ approach to advocacy support would entail, and whether current frameworks in England and Wales are adequate for this approach and provide a sufficient safeguard. First, we consider how the human rights of persons with dementia have become increasingly important and the extent to which the CRPD provides an opportunity to bolster safeguards and protection. Second, we discuss cause and case advocacy, and how these advocacy models could be shaped by the CRPD to promote the rights of persons with dementia at each stage of the disease. Third, we highlight current dilemmas and challenges in the provision of advocacy support in England and Wales by focusing on case law, commissioning of services and current practice. In particular, we analyse how the different legislative schemes have given rise to some confusion about the various advocacy provisions, as well as potential for overlap and discrepancies between different regimes. We also highlight the need for further research to address important gaps in knowledge, including the scale of need, patterns of referral and attitudes to advocacy services. The article concludes by highlighting how advocacy support could be recalibrated as a universal right to promote the aims and aspirations of the CRPD, and how education is needed to address the stigma of dementia and promote the benefits of advocacy in protecting the rights of those with dementia.

A defendant's ‘insanity’ will not excuse his or her negligence. According to corrective justice theory, if A injures B, then A should compensate B – that A's actions may be attributable to a mental illness is therefore immaterial. Some tort scholars argue the law should excuse insane defendants from liability because they lack the mental capacity to commit negligence. ‘Capacity’ therefore lies at the core of the case for insanity defence. This article argues that ‘capacity’ fails as a framework concept for the insanity defence. It is poorly defined, fails to map onto the structural features of negligence and poses significant evidential challenges. It also has a spurious relationship with insanity. This paper prefers the status quo and concludes that the case for excusing the insane from negligence liability is conceptually flawed and normatively unconvincing.

Gerard Quinn advances the proposition that there is a ‘legal culture’, which consists of unstated values and institutional expectations that underpin legal orders and constitute a ‘morality’ which enables law to be possible. He focuses on the United Nations Convention on the Rights of Persons with Disabilities (CRPD 2006), in particular on Article 12—Equal recognition before the law, to discuss the limited power (to date) that it has had in dislodging fundamental assumptions in legal cultures concerning legal capacity. Quinn uses this example to show how changes to ideas of legal personhood and mental capacity are difficult to achieve because of ‘legal fictions’ that lie at the heart of legal systems’ legal cultures. Quinn puts forward some ways to dislodge the historical ‘legal fictions’ embedded in legal culture.

The paper analyses Art. 12 of the Convention on the Rights of Persons with Disabilities and its implications for the position of persons with mental disabilities. The new concept of legal capacity contained in Art. 12 should ensure that fundamental human rights of these persons are no longer “a dead letter on paper”. However, once the Convention came into force, the implementation of this provision has proved to be problematic for States Parties. Diane Kingston, former Vice-Chairperson of the Committee on the Rights of Persons with Disabilities, best expressed the scale of the problem in October 2015 when she emphasized that no country had until that point fully met the requirements contained in Art. 12. Given that the Convention is a document that prescribes the fundamental human rights, the statement that no national legislation is consistent with its key provision is confusing and worrying. Therefore, a special attention should be paid to Art. 12 and its implementation in practice, U radu se analizira odredba čl. 12. Konvencije o pravima osoba s invaliditetom te njezin utje- caj na položaj osoba s duševnim smetnjama. Nova koncepcija poslovne sposobnosti sadržana u čl. 12. trebala bi osigurati da temeljna ljudska prava osoba s duševnim smetnjama više ne budu mrtvo slovo na papiru. No, nakon što je Konvencija stupila na snagu, implementacija ove odredbe pokazala se problematičnom za države stranke. O razmjerima problema najbolje govori izjava Diane Kingston, bivše potpredsjednice Odbora za prava osoba s invaliditetom, iz listopada 2015., kako dotad nijedna zemlja nije u potpunosti udovoljila zahtjevima sadržani- ma u čl. 12. S obzirom na to da je Konvencija dokument koji propisuje temeljna ljudska prava, izjava kako nijedno nacionalno zakonodavstvo nije usklađeno s njegovom ključnom odredbom zbunjujuća je i zabrinjavajuća te zahtijeva da se odredbi čl. 12. posveti posebna pozornost.

The first part of the article demonstrates how the concept of mental resilience has developed from the 1970s to the 2010s, spreading from the field of developmental psychopathology to a wide range of psychological and psychotherapeutic disciplines. Today, there are many varied definitions of mental resilience, ranging from a relation to the concept of mental vulnerability to a related concept of mental strength. The second part of the article demonstrates how the current popularisation of the idea of individual resilience is associated with a social and cultural problematisation of the vulnerable life as well as with a psychopolitical and governmental focus on enhancing the mental capacity of citizens.

Decisions under the Mental Capacity Act (MCA) may be made in a person’s best interest. This concept is objective, unclear and places discretion in the hands of the decision maker. Currently a person's wishes, feelings, beliefs and values are not accorded primacy status among the checklist of factors to be considered under s.4 MCA. In 2017, the Law Commission in their report on Mental Capacity and Deprivation of Liberty proposed amending the best interest test under s.4 of the MCA to require the decision maker to ascertain wishes and feelings and to also elevate the status of the ascertained wishes and feelings among the other factors under s.4.These proposals contained in a Draft Bill would be of general application under the Act. This paper argues that the trajectory begun by Lady Hale in the Supreme Court in Aintree in asserting the individual at the heart of her destiny and the Law Commission proposals are to be welcomed but do not go far enough to be aligned with the principle of supported decision making set out in international frameworks, such as the Convention on the Rights of Persons with Disabilities (CRPD).

Impaired capacity is very common in hospital inpatients, and assessment of capacity and decision-making should be a core skill for all clinicians. The Mental Capacity Act 2005 provides a clear framework for decision-making; it involves five key principles: the presumption of capacity; the obligation to maximize decision-making capacity; respect for an unwise decision if made by a competent adult; a duty to act in the best interests of an incapacitated person; and action in a manner that is least restrictive to them. Assessment of capacity in patients who are physically unwell can be challenging, and may need to be performed over multiple assessments. Efforts should be made to ensure that the patient's views are heard and respected, even if they lack capacity to consent to the treatment in question. Complexities arise when other legal frameworks such as the Mental Health Act 1983 need to be considered, and specialist legal or psychiatric opinion may be required in certain scenarios.