This month sees the start of a new study at the NIHR Health and Social Care Workforce Research Unit, King’s College London. Over the next two and a half years researchers will work with people with experience of homelessness and professionals who work with them to examine mental capacity assessments and multiple exclusion homelessness in England. Stephen Martineau, Research Fellow at the Unit, introduces the study, which is funded by the NIHR Health and Social Care Delivery Research (HSDR) Programme.

At the Unit this month we are starting a study, ‘Use of the Mental Capacity Act 2005 with people experiencing multiple exclusion homelessness in England’. The co-Principal Investigators are Kritika Samsi (KCL) and Michelle Cornes (Salford & KCL), with the main researchers being Jess Harris (KCL) and Stephen Martineau (KCL). The lived-experience Advisory Group (PPIE) is led by Stan Burridge, who, as a member of the research team, will also be carrying out interviews with people experiencing homelessness. The other research team members are: Alex Ruck Keene KC (Hon), KCL and 39 Essex Chambers; Nathan Davies, UCL; Alex Bax, Pathway; Sam Dorney-Smith, Pathway; Bruno Ornelas.

After an evidence review, interviews with national experts and a national practitioner survey, we will focus on three contrasting sites in England – interviewing people with experience of homelessness and a range of professionals engaged in their support and care. Finally, informed by our findings, we plan to bring together stakeholders and, in consensus, revise a pre-existing capacity assessment Tools and Guidance document for practitioners working with people experiencing homelessness.

Background

About a decade ago in the London Borough of Lambeth, a review into the death of a 63-year-old man who had been sleeping on the streets recommended work on ‘understanding how the Mental Capacity Act (2005) [MCA] can be used to safeguard people in this context.’* One consequence came in the form of a pioneering Tools and Guidance document – now in its third edition (2017) – that places the MCA in context with the Mental Health Act 1983 (MHA), risk assessment, adult safeguarding and hospital admission procedures, all calibrated for those working with people who are street sleeping.

The more immediate context for the new study is provided by our recently completed study of homelessness and adult safeguarding, with a particular focus on self-neglect. Sadly, we found that capacity assessment remains a very problematic area of practice with people who are experiencing multiple exclusion homelessness. Often, we heard that assessments were not taking place and where they were, they were frequently brief, undocumented, or carried out without specialist training. We were left wondering to what degree individuals in this population might be in high-risk situations made worse because of an inability to make decisions, around care and support for example, resulting from an underlying ‘impairment of, or a disturbance in the functioning of, the mind or brain’, as the MCA puts it.

One final element of the background to the new study has to do with our use of the term ‘multiple exclusion homelessness’ or MEH. This is where homelessness overlaps with other experiences associated with social exclusion. In the Lambeth case, rough sleeping combined with substance misuse and serious mental illness, including detention under the MHA. It can be useful to look back to Tony Blair’s creation in 1997 of the Social Exclusion Unit, for which rough sleeping – seen in terms of multiple interlocking needs, not just homelessness – was one of five early areas of focus. In research terms, around the time of the Lambeth case, a major ESRC-funded programme on MEH featured one of our new study’s Principal Investigators, Professor Michelle Cornes; she led on the workforce element of that programme (the whole of which is very usefully summarised by McDonagh, 2011). There are continuities here.

So, what’s changed?

In some respects, it can seem that the continuities in this field are not altogether cheering: a statutory scheme for the assessment of capacity that, arguably, has still not really ‘landed’ when it comes to working with this population in the welfare landscape provided by care and support, housing, health, and human rights legislation.

But, of course, things have changed / are changing, and it’s worth highlighting four elements I have in mind here – those things which seem, at this stage at any rate, most salient to the study launching this month.

Safeguarding Adults Reviews

The quality of these lesson-learning reviews has been transformed over the last two decades (I’m including here their pre-Care Act predecessors, adult Serious Case Reviews) – not least in relation to cases involving people with experience of homelessness. The SAR on Howard (2018) by Michael Preston-Shoot is a case in point. Others that spring to mind are Jonathan (2021) by Bruno Ornelas and ‘Peter’ (2022) by Fiona Bateman. It’s great that both Bruno (who has recently taken up a role as Rough Sleeping Adviser at DLUHC after leading services in the third sector) and Fiona (a specialist solicitor in this area) are on the team for the new project. We worked with Bruno and others on an examination of SARs where homelessness was a factor back in 2019. Capacity assessment features prominently in these reviews in a variety of ways and they are useful sources of evidence.

Sector engagement

Between 2019-21 the Local Government Association and the Association of Directors of Adult Social Services organised 12 events on homelessness, which drew together researchers, practitioners, and other stakeholders including experts by experience. Capacity assessment is a strong theme in the outputs from this initiative (a briefing on positive practice, 2020; experience informed practice, 2021; and see Cooper and Preston-Shoot, 2022). The recent webinar, in the Homelessness series run out of this Unit by research team member Jess Harris, on social work education and homelessness drew over 200 attendees, and engagement from the British Association of Social Workers, Social Work England and the Chief Social Worker for Adults. Recently, a national peer network for social workers specialising in homelessness and rough sleeping was set up, supported by our Unit.

Legal developments

The most prominent relevant judicial intervention since the latest edition of the Tools and Guidance is JB (2021), the first time that the Supreme Court gave a detailed examination of what it means to have or lack capacity – making clear, among other things, the correct sequencing of the core elements of mental capacity assessment. Our evidence review will incorporate judgments in case law directly relevant to MEH, such as PB (2020) on alcohol dependency and North Bristol (2023), which refers to the relevance of trauma in homelessness and capacity assessment – the latter a judgment described by research team member, Alex Ruck Keene, as a ‘capacity masterclass’. Paragraph 65 of the judgment, which outlines a ‘minimum’ requirement when it comes to the recording of assessments, will be interesting to consider in relation to the third edition of the Tools and Guidance. Three of the authors of that edition, Alex Bax (from Pathway, the homeless healthcare charity), Stan Burridge (expert by experience, Expert Focus) and Barney Wells (of EASL, Enabling Assessment Service London) are on the study team.

A draft MCA Code of Practice was published in March 2022 and a consultation completed in July 2022. Assuming a refreshed Code comes into force in the lifetime of our study, informed by some 16 years of case law, it will obviously be a touchstone. For example, the draft Code contains guidance on executive function and capacity assessment, absent from the present Code – this area often being relevant to those experiencing MEH, where brain injury is frequently a factor.

Research

Finally, the last few years have seen a significant tranche of research on the MCA, drawing on the accrual of judgments emanating from the courts, together with reports of practice experience. At this point, the Contested Assessment workstream of the completed five-year Mental Health and Justice research initiative (led by Gareth Owen) seems particularly relevant. One of the practice-facing outputs of this workstream, on which Alex Ruck Keene was senior legal researcher, was the ‘typology of capacity rationales’ paper (Kim et al., 2022), which seeks to bridge the ‘translation gap’ between practice and statute. In a short project at this Unit (reporting soon) we heard from one consultant psychiatrist about how this typology was a useful tool in their practice – it was in their ‘back pocket’ in fact. Other recent contributions, which relate to capacity assessment, have come from the Essex Autonomy Project, Peter Bartlett (2023), Lucy Series, and Camillia Kong.

****

Taken together, we hope these four elements – SARs, sector engagement, legal developments, and recent research – amount to a favourable context for the study starting this month. The backdrop is provided by the Office for National Statistics – its (2021) figures on the deaths of homeless people. And while there is a policy drive towards ending rough sleeping (on which, see generally the Centre for Homelessness Impact), the Kerslake Commission on Homelessness and Rough Sleeping (September 2023) recently concluded that the government will not meet its current target. We believe that promoting competent capacity assessments when they are called for has the potential to lead to more timely care, support and treatment for this population.

Stephen Martineau is Research Fellow at the NIHR Health and Social Care Workforce Research Unit, King’s College London. This new study sits in the Homelessness Research Programme based at the Unit.

Update (July 2024): See blog about the webinar where we report emerging findings.

Project page for the new study: Use of the Mental Capacity Act 2005 with people experiencing multiple exclusion homelessness in England | News item

Get in touch: If you would like to get in touch about the study please contact Jess Harris: jess.harris@kcl.ac.uk

Research team: The main researchers are Jess Harris, KCL and Stephen Martineau, KCL. Kritika Samsi (PI), KCL; Michelle Cornes (PI), Salford & KCL; Alex Ruck Keene KC (Hon), KCL and 39 Essex Chambers; Stan Burridge, Expert Focus; Nathan Davies, UCL; Alex Bax, Pathway; Sam Dorney-Smith, Pathway.

Lived experience Advisory Group (PPIE) led by Stan Burridge.

Collaborators: Enabling Assessment Service London (EASL); Elizabeth Furber; Fiona Bateman; Edge Training & Consultancy Ltd

* Lambeth Safeguarding Adult Partnership Board Annual Report September 2011 – September 2012, p.60.