Stephen Martineau reports from a gathering held at Melbourne House, King’s College London on 26 September 2025. (1884 words)

Introduction

The Mental Capacity Act 2005 and homelessness study is an ongoing examination of the mental capacity assessment of people in England who are homeless and who have experienced other forms of disadvantage. The research team have conducted a national practitioner survey (674 responses) and interviews with experts (n=13). The core of the study has involved interviews in three local authority sites with people with lived experience (n=32) and with practitioners (n=46). Together with expert collaborators, we are developing practice guidance. The project ends in March 2026.

Mid-way through the analysis of the site interviews we invited a group of experts in the field of mental capacity, homelessness – or both – to discuss some of the emerging findings. In particular, we asked this roundtable to think about the ‘diagnostic’ or ‘impairment’ part of the definition of incapacity in section 2(1) of the Mental Capacity Act 2005 (MCA). We met to do this at Melbourne House, King’s College London on 26 September 2025.

We are hugely grateful to those people who came along for this half-day event. In addition to thinking about the place of substance use, executive dysfunction and trauma in these assessments, participants also considered when MCA assessments may be misused, or where the Act may be the inappropriate ‘prism’ through which to decide practice approaches. The purpose in this blog post is to summarise the observations that were made during the roundtable – hopefully not, in the act of synthesis, doing damage to the particular points being expressed. It is worth stressing that the following is not a ‘consensus statement’ and, although we list the participants at the end of the post, we all contributed on the understanding that none of the views recorded in any subsequent publication, including this one, would be attributed to any individual who took part.

Question of the day

How can we improve approaches to mental capacity assessments with people experiencing homelessness and multiple disadvantage, so that they contribute to increased understanding and to reduced inequalities in support and outcomes?

Substance and alcohol use

‘Craving’ or ‘need’ changes over time. The way that addiction manifests as craving or need for a substance is not a constant state: the need to have a substance becomes primary in a person’s thinking in a way that it wasn’t 12 hours ago. How should we approach this under the MCA?

Inappropriate expectations of the MCA to do the ‘heavy lifting’. Some practitioners turn to the MCA when adult safeguarding protocols may be more appropriate. It is important to remember that the primary purpose of the MCA is to manage situations where there are difficulties obtaining consent .If the MCA is not helpful with dependence syndromes, should another legal framework be in place if someone is facing high risks of harm or death?

Comparison with anorexia nervosa. Commentators sometimes draw a comparison between substance dependence and anorexia, but there is a key distinction in the exclusion of alcohol and drug dependence from the definition of ‘mental disorder’ in the Mental Health Act 1983 and, by extension, from the Deprivation of Liberty Safeguards regime under the MCA. Through Parliament’s introduction of these provisions, society has expressed the view that there should be this exclusion where the specific syndrome of ‘dependence’ is concerned. However, short-term effects of substance use – e.g. intoxication or withdrawal effects – might give rise to a finding of incapacity with respect to a decision.

Harm minimisation measures should be considered – it should not just be a case of ‘nothing or deprivation of liberty’. Where a person is making a capacitous decision to refuse support, practitioners should not stop offering harm minimisation. Important context here is that, where detox is concerned, one problem in recent years has been the reduction in national provision.

When it’s unclear what can be done with a finding of incapacity –  there is a tendency for practitioners to ‘leap to saying they have capacity or we can’t do a capacity assessment because the alternative would be too restrictive of that person’s freedoms, or not something which is funded […] There’s something about boldly coming to reasonable conclusions that someone might lack capacity even when it’s not clear what we’re going to do about it, and then struggle with that.’

Organisational support should be in place for this kind of professional risk. For example, where someone is self-discharging from hospital it can be ‘extremely tempting’ to attribute capacity because letting someone self-discharge without capacity might be inherently dangerous for the person, and place responsibility on the professional.

Political context is relevant. The tendency in political thinking which prioritises focusing on the individual’s problems and their personal responsibility, rather than taking more collective responsibility for social problems, fits with the reported prioritisation by practitioners of autonomy over protection when faced with self-neglect and risk-taking behaviour in this population.

Executive dysfunction

Difficulty with the concept. There is a reported ‘perpetual bafflement’ on the topic and perhaps we (i.e. the roundtable participants) only understand it because we are specialists? It can be a ‘challenging concept’ and difficult at times to convince clinicians/practitioners that it is present.

People with experience. And yet, some have a really good grasp through experience with people manifesting executive dysfunction. For example, people caring for those with Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder or dementia often understand it. ‘Once you learn how to recognise the pattern or the patterns it isn’t that difficult.’  A specialist or doctor is not necessarily called for, though an assessment by telephone call will not suffice.

Assessment environment. There is the challenge of hospitals being ‘nowhere near like real life at all’ and therefore not a good place to assess executive function, since executive dysfunction can ‘melt away’ when cues and structures are in place, for example prompts to eat and wash regularly.

Cognitive assessments. Even though cognitive tests aren’t necessarily good at picking up the frontal lobe paradox, they are useful in identifying other cognitive deficits – yet there is a ‘massive reluctance’ by practitioners to do these to feed into capacity assessments. Possible reasons include: lack of confidence in administering them and a lack of time.

The recent upsurge of interest in executive dysfunction. It has always been good practice to consider what goes on beyond the assessment interview space – i.e. the ability to make a decision when you need to in the future. Note that not following through on a decision doesn’t necessarily equate to executive dysfunction, and that there might be a deficit in a person’s ‘life skills ability.’

Trauma

Capacity assessment and therapeutic work. It is important to recognize that engaging with someone to carry out a capacity assessment is different from therapeutic work. That said, it can make sense to build a ‘therapeutic relationship’ in order to get to the point where you can provide the person with the information they need in a way that they can process, when undertaking a capacity assessment. Such practice is probably a long way from what is actually taking place in many cases.

Timing. A key question might be: do I need to reach a conclusion about capacity for this decision now? It might not be in the person’s best interests to conduct a capacity assessment at this time.

Trauma and capacity. In some cases, trauma might not be directly relevant to decision-making ability; at other times it may feel like the causative factor in the test, but it can be challenging to reach a legally coherent determination that the person lacks capacity for purposes of the Mental Capacity Act 2005 on the basis of trauma alone. Seen from the outside a decision may seem unwise – but the person’s trauma history may mean that ‘from their perspective it might be the absolutely wisest move they can make […] we’ve never lived their lives […] if they didn’t have that trauma, they might have chosen differently. And so then how can we use that to move them in a direction that we hope is safer for them?’

Misunderstanding the ‘unwise decisions’ principle. Unfortunately, practitioners sometimes think that you can’t use an ‘unwise decision’ as a reason to assess capacity. Equally, it is important not to fall into the trap of thinking that agreement with practitioners/clinicians equates with having capacity to consent.

Diagnosis…and getting the story. While the Court of Protection has said that a diagnosis is not necessary when considering the impairment causing an inability to make a decision – this was described as being ‘right on the edge’ where trauma is concerned given the lack of clarity as to whether trauma, alone, can constitute a legitimate ‘impairment of, or […] disturbance in the functioning of, the mind or brain’ for the purposes of the MCA.

• Much will depend on the assessor’s facility in putting into words the case they are making.
• Although there is a danger of re-traumatizing people through coercive interventions, there is also a danger of re-traumatizing people through neglect – in light of the prevalence of parental and institutional neglect with this population.
• There is a danger that in focusing on trauma, other elements may be overlooked – for example, autism.
• Focus on getting ‘the story’ is important to understand what the stress response is a response to.

An off switch?

Is a finding of capacitous refusal of assistance being used by practitioners as an off switch for engagement where there are unmet needs and high risks of harm?

• Practitioners might owe duties to an individual to carry on engaging and revisit decisions, arising (for instance) under the Human Rights Act 1998 and the positive obligations under Articles 2 and 3 of the European Convention on Human Rights imported by that Act.
• Continued engagement is important because the person might change their mind.
• Section 11 of the Care Act 2014: ‘Refusal of assessment’ might be relevant as it sets out an ongoing duty to conduct a needs assessment in the face of refusal where the person is experiencing, or is at risk of, abuse or neglect.

The prism problem

• What are the consequences of being encouraged to see everything in terms of individual ‘choice’ since the advent of the MCA?
• There is a danger of forcing every service decision into the binary scheme presented by the MCA – it is important to remember to be trauma-informed, the importance of building trusted relationships, and using motivational interviewing techniques, safeguarding protocols etc.
• Rather than load too many expectations onto capacity assessments, it is important to ask: ‘what are the (pre)conditions for good quality capacity assessments?’ There is a danger that assessments are being used for gatekeeping, ‘used as a cover for what are essentially rationing decisions.’
• Large, backdated benefits payouts to people experiencing homelessness and addiction can lead to drug overdoses and coercion from associates, so mental capacity to manage large sums safely should be considered. At times capacity may be the wrong prism to decide service intervention, but it remains important to consider ability to manage large sums safely.

Roundtable participants

Nana Asamoah, Jane Cook, Sam Dorney-Smith, Ezra Furber, Jess Harris, Stephen Martineau, Dee O’Connell, Bruno Ornelas, Gareth Owen, Laura Pritchard-Jones, Alex Ruck Keene KC (Hon), Kritika Samsi, Vikki Teggart, Joanne Prestidge, Barney Wells, Amy Wolstenholme.

Special thanks to research team members Bruno Ornelas for chairing and Kritika Samsi for notetaking and helping set the meeting up.

Study page: Use of the Mental Capacity Act 2005 with people experiencing multiple exclusion homelessness in England

Earlier blog posts from this study

• Using the Mental Capacity Act 2005 with those experiencing Multiple Exclusion Homelessness – Challenges, Debates & Resources (July 2024)
• New study at the Unit on capacity assessment and homelessness (October 2023)

This research is funded by the National Institute for Health and Care Research (NIHR) Health and Social Care Delivery Research Programme: NIHR154668. The views are not necessarily those of the NIHR or the Department of Health and Social Care. We are most grateful to all those who participated in the meeting.