Using the Mental Capacity Act 2005 with those experiencing Multiple Exclusion Homelessness – Challenges, Debates & Resources

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Stephen Martineau (KCL) reports from the latest webinar in the Homelessness series, part of the Homelessness Research Programme at the NIHR Policy Research Unit in Health and Social Care Workforce, King’s College London. (855 words)

Over 220 people attended yesterday’s webinar in which Jess Harris presented early emerging findings from the NIHR HSDR-funded study, Use of the Mental Capacity Act 2005 (MCA) with people experiencing multiple exclusion homelessness in England. The findings were drawn from a set of scoping interviews with a range of senior professionals working with this population. The presentation focused on the professionals’ views of the challenges around use of the MCA in this space. These interviews have already informed the development of our national survey of health, social care and homelessness practitioners which is the next stage of the study, and which is currently live (and takes about 10 minutes). We plan to report on our analysis of findings from this survey later in 2024 at another webinar in the Homelessness series.

The presentation provoked thoughts from attendees about various aspects of this topic, together with suggestions of some useful resources. We have collated some of these below. Among a lot of valuable contributions, two stood out as particularly interesting. One was about the ‘diagnostic test’. This has come up in practitioner interviews – specifically the question of how practitioners are approaching this element of the capacity assessment with people where substance use may feature in combination with (and possibly masking) mental illness. The other was the suggestion that the MCA is a poor fit when it comes to compulsive behaviours. It will be interesting to explore this further during the fieldwork part of this study (starting in autumn 2024) in light of London Borough of Tower Hamlets v PB [2020] EWCOP 34 (see Kane et al. (2023) Shades of grey: choice, control and capacity in alcohol-related brain damage).

General issues raised at the webinar by attendees

  • Problem of exclusion of rough sleepers from needs assessments under the Care Act 2014.
  • Dual diagnosis is a particular challenge because of the lack of services in many areas.
  • Lack of suitability of interventions available to social care – a commissioning issue, but also a systemic issue, across Health, Social Care, Housing.
  • It was suggested that early release schemes from prison are going to be a big issue for this population.

Using the MCA

  • It was suggested that the MCA is a poor fit for complexity within the MEH population, particularly around compulsive behaviours.
  • Executive function: importance of longitudinal capacity assessments was stressed by some. Also, Occupational Therapist and Speech and Language Therapist involvement in assessments.
  • On the ‘diagnostic test’ and this population. There was debate in the chat as to whether the Court of Protection requires a formal diagnosis. North Bristol was cited in support of the argument that a formal diagnosis is not required. (North Bristol NHS Trust v R [2023] EWCOP 5). (See August 2024 update below and the suggestion that a better term is ‘impairment test’)
  • Importance of recognizing the knowledge and potential input (to capacity assessments etc.) of non-statutory practitioners. Support workers’ and outreach workers’ knowledge of the person may be overlooked. A clinical psychologist in a third sector organisation made a similar point, speaking of a power imbalance.
  • There was mention in the chat of detox being provided under Deprivation of Liberty Safeguards, in at least one site in England, if there is a plan for Alcohol Related Brain Injury rehab.
  • It was suggested self-discharge from hospital and mental capacity is a key concern.

Possible futures

  • But what do ‘best interests’ look like for this population, given the gaps in specialist support and care provision? Good examples of what is needed were mentioned: St Mungo’s London; Hestia House, Liverpool.
  • Are we asking the right question in our capacity assessments? Before care and support decisions – are we giving people the options of recovery, treatment detox, rehab in relation to brain injury. Rather than a binary focus – either independent living in the community or a residential DoLS – there should be more paths and options, it was suggested.

Points made to the researchers

  • Will there be examples of good practice arising from the research? Will it be possible to test such approaches?
  • It is necessary to push these important research findings to wider audiences: professionals, service leads, commissioning and policy.
  • ‘I would suggest reframe homelessness as healthcare not social care to bring to a wider audience’ – attendee

On a positive note

  • ‘On a more positive note the recent joint ministerial letter requires all Safeguarding Adults Boards to provide evidence of leadership in safeguarding people who are rough sleeping/ how they obtain assurance/ deliver national policy requirements. This initiative was unthinkable 10 years ago’ – attendee. [the letter referred to is available here]
  • Some responses to the webinar:
    • ‘all these issues are EXACTLY what we face in our team!… you are hitting all the nails on the head’
    • ‘Thank you so much Jess. Fantastic study and very interesting presentation. Look forward to hearing more.’
    • ‘Amazing webinar and also great opportunity to network!’

Resources shared by participants

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About this study

Use of the Mental Capacity Act 2005 (MCA) with people experiencing multiple exclusion homelessness in England.

The co-Principal Investigators are Kritika Samsi and Michelle Cornes, with the main researchers being Jess Harris (your first point of contact: jess.harris@kcl.ac.uk) and Stephen Martineau. The other research team members are: Alex Ruck Keene KC (Hon); Nathan Davies; Sam Dorney-Smith; Stan Burridge; Bruno Ornelas.

This study is funded by the National Institute for Health and Care Research (NIHR) Health and Social Care Delivery Research (HSDR) Programme. The views expressed here are those of the authors and not necessarily those of the NIHR or the Department of Health and Social Care.

Please take part in our survey!

Mental Capacity & Homelessness Survey 2024

Are you a health, social care or homelessness practitioner in England who works with people experiencing homelessness and disadvantage such as mental illness or substance use? Your views are important, whether you work occasionally, or wholly, with this population, and whether or not you conduct capacity assessments.

This survey will only take 10 mins: https://app.onlinesurveys.jisc.ac.uk/s/kings/mental-capacity-homelessness-national-practitioner-survey-202-1

To receive the findings/ enter the £100 voucher draw just add your email at the end.

Thank you for helping improve understanding and support for this population.

Update (August 2024)

In relation to the ‘diagnostic test’ and North Bristol it’s worth noting the Court of Appeal judgment Re Sudiksha Thirulamesh (dec’d) [2024] EWCA Civ 896, which was published 31 July 2024. King LJ explicitly endorsed the North Bristol approach ‘that no formal diagnosis of impairment is required’ in a capacity assessment (para 140). The judgment records that Alex Ruck Keene KC (Hon) and Neil Allen (acting for MIND as an intervener in the appeal) ‘submitted that a more appropriate term would be to refer to the “impairment test” rather than the diagnostic test’ (para 40). Worth noting also that elsewhere in her judgment King LJ uses the phrase ‘mental impairment test’ more than once. Alex Ruck Keene is a co-investigator in the present study (see his summary of the Sudiksha Thirulamesh judgment).

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