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

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)
  • 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.

Continue reading

New study at the Unit on capacity assessment and homelessness

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. Continue reading

Tracing the significance of executive functioning among people experiencing homelessness

Carolin Hess is a PhD student in the NIHR Policy Research Unit in Health and Social Care Workforce who has been awarded Doctoral funding from the NIHR School for Social Care Research, commencing February 2023. (896 words)

Carolin Hess

In the latest webinar in the HSCWRU Homelessness series, 225 participants joined Ellie Atkins, a senior social worker and Safeguarding lead, for a presentation which asked, What does research and expert practice tell us about the importance of executive functioning assessments? The topic builds on themes from last month’s webinar, exploring mechanisms of agency and choice, and how self-neglect among homeless populations can be addressed by strengthening safeguarding responses.

The presentation opened with the question of why the Everyone In Initiative, a £3.2 million emergency fund set up during the COVID-19 pandemic to house people in the UK who were rough sleeping, did not end rough sleeping for all individuals. The scheme was widely hailed as a success, with organisations praising the unprecedented effort and rapid response to homelessness through increased partnership working and communication, which supported over 30,000 people into accessing accommodation. Continue reading

‘…items and belongings…’ – a hoarding case at the Court of Protection

Stephen Martineau summarizes a recent case at the Court of Protection involving hoarding behaviour: AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39. With thanks to Neil Allen for alerting us to the judgment via this Tweet.

The NIHR Policy Research Unit in Health and Social Care Workforce, where Stephen is Research Fellow, recently completed a study of self-neglect and hoarding behaviour among older people and it has just commenced another study on the commissioning of decluttering services by local authorities (this study is recruiting participants). Both projects are funded by the NIHR School for Social Care Research.

We are holding an online seminar engaging legal and psychological perspectives on hoarding: Mon 28 Nov 2022, 10am-11.30am. (2,294 words)

Introduction

This case concerned AC, a 92-year-old woman. She had been sharing her home (which she owned) with her son, GC, since her husband’s death eleven years earlier. GC had given up his job and had become his mother’s main carer. In February 2022 she was taken to hospital by emergency services and in March was discharged from hospital to a care home as a result of a best interests decision. There had been concerns about the unsanitary conditions at her home and their potential impact on her health and welfare.

The question to be decided in summer 2022 was whether AC should now return home for a trial period, receiving a package of care there. It was her wish to return home, while the local authority thought she should remain at the care home. We learn from this judgment (August 2022) that both AC and her son were diagnosed by a clinical psychologist, Professor Salkovskis, as having a hoarding disorder (among other conditions), and also that both have their own social worker.

The judge, HHJ Clayton, had already been managing the case for two years: there had been earlier applications to the Court of Protection by the local authority (and the judgment alludes to yet earlier proceedings that had ended in 2018). In August 2020, the local authority had applied for AC to be moved to a respite placement while the poor conditions at her property were addressed. More recently, it had sought an order that her son leave the property for the same reason.

Much of the difficulty of the case arose because of concerns around GC’s mental health. If AC were to return home, it was proposed that he would be the ‘second carer’ (after the care agency). Continue reading

Liberty, social care detention and the law of institutions

Stephen Martineau, Research Fellow at the NIHR Policy Research Unit in Health and Social Care Workforce at King’s College London, reviews Deprivation of Liberty in the Shadows of the Institution by Lucy Series (University of Bristol). Page numbers in brackets refer to the book, which was published in March 2022 (and is available for free). (2,642 words)

Introduction

One of the more familiar stories from recent UK history about the lives of people with longstanding serious mental illness or intellectual or cognitive disabilities is their move from large-scale institutional accommodation to living arrangements beyond the walls of such places. The extent of this ostensible deinstitutionalization is illustrated by the decline in hospital beds for ‘mental illness’, ‘geriatric’ patients and people with intellectual/learning disabilities—from over 200,000 in 1955 to under 20,000 in 2020 (Series, 2022: p.53). Much of this shift was to do with the closing of survivals of the Victorian era (which started out being called asylums, subsequently renamed mental hospitals) that took place through the second half of the twentieth century.

As Lucy Series describes in her book, Deprivation of Liberty in the Shadows of the Institution, these newer smaller-scale living arrangements may take the form of ‘quasi-institutions’ (residential care and nursing homes) or ‘quasi-domestic’ arrangements (‘supported living’, ‘independent living’, sheltered housing), or indeed ordinary homes.

Series describes this development as a passage from a ‘carceral’ to a ‘post-carceral’ era (after Unsworth, 1991). But in making the physical move away from institutions, to what degree have some less tangible aspects of the old institutional life been carried over to those new living arrangements, as far as these individuals are concerned? To what extent, Series asks, are they still living in ‘the shadows of the institution’?

This question was brought sharply into focus in the UK Supreme Court case of Cheshire West, the litigation that forms the dramatic fulcrum of this book. The court’s approach meant that its definition of deprivation of liberty applied to a much wider array of living arrangements than had hitherto been the case, extending to private homes, where family members were the carers (or custodians?) of the person concerned. It is the socio-legal ramifications of this move (which Series views as transgressive) that are the main concern of the book. To put it briefly and in human-rights terms, in its approach to concerns about liberty in the area of social care detention—under article 5 of the European Convention on Human Rights—the court seemed to set up a clash with a set of questions belonging more under article 8 (respect for private and family life), to do with the distinction between institutions and homes.

This review is split into five short sections: 1. Social care detention. 2. The acid test. 3. Liberty. 4. Home. 5. Out of the shadows? Continue reading

On best interests: values and participation in mental capacity law

Stephen Martineau is Research Fellow at the NIHR Policy Research Unit in Health and Social Care Workforce, King’s College London. (1,115 words)

At the British Academy earlier this month, Dr Camillia Kong (Birkbeck College) and colleagues presented their end-of-project findings on the place of values and participation in mental capacity law. As well as contributions from the research team, the day featured a group of international experts, three Speak Out Leaders from VoiceAbility, and it culminated in a panel made up of four senior former judges: Baroness Hale of Richmond, Sir Mark Hedley, Senior Judge Denzil Lush, and District Judge Margaret Glentworth.

Participation and values

The event coincided with the launch of the second of two films produced by the project. The first, from 2021, had addressed the importance of good communication with the person at the centre of Court of Protection proceedings and discussed some of the ways of enabling their involvement (see particularly the ‘role-play’ at about 22 mins in). Three contributors in the film, Speak Out Leaders from VoiceAbility, took part in a panel at the event. The new film, Making Values Matter in the Court of Protection, includes a remarkable ‘demonstration’ of the exploration of a person’s values by a barrister engaging with the person and their father (from about 9 mins in). By modelling one way that requirements in the best interests checklist in s.4 Mental Capacity Act 2005 can be met, it provides a corrective to any notion that a finding of incapacity in respect of a decision amounts to an ‘off-switch’ for a person’s rights and freedoms.* Continue reading