{"id":4752,"date":"2025-12-02T17:26:56","date_gmt":"2025-12-02T17:26:56","guid":{"rendered":"https:\/\/blogs.kcl.ac.uk\/socialcareworkforce\/?p=4752"},"modified":"2025-12-03T10:42:57","modified_gmt":"2025-12-03T10:42:57","slug":"an-mca-roundtable","status":"publish","type":"post","link":"https:\/\/blogs.kcl.ac.uk\/socialcareworkforce\/2025\/12\/02\/an-mca-roundtable\/","title":{"rendered":"An MCA roundtable"},"content":{"rendered":"

Stephen Martineau<\/strong><\/a> reports from a gathering held at Melbourne House, King’s College London on 26 September 2025.<\/em> (1884 words)<\/p>\n

Introduction<\/h2>\n

The Mental Capacity Act 2005 and homelessness study<\/a> 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.<\/p>\n

Mid-way through the analysis of the site interviews we invited a group of experts in the field of mental capacity, homelessness \u2013 or both \u2013 to discuss some of the emerging findings. In particular, we asked this roundtable to think about the \u2018diagnostic\u2019 or \u2018impairment\u2019 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\u2019s College London on 26 September 2025.<\/p>\n

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<\/strong> and trauma<\/strong> in these assessments, participants also considered when MCA assessments may be misused, or where the Act may be the inappropriate \u2018prism\u2019 through which to decide practice approaches. The purpose in this blog post is to summarise the observations that were made during the roundtable \u2013 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 \u2018consensus statement\u2019 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.<\/p>\n

Question of the day<\/h2>\n

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?<\/em><\/p>\n

Substance and alcohol use<\/h2>\n

\u2018Craving\u2019 or \u2018need\u2019 changes over time<\/strong><\/em>. 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\u2019s thinking in a way that it wasn\u2019t 12 hours ago. How should we approach this under the MCA?<\/p>\n

Inappropriate expectations of the MCA to do the \u2018heavy lifting\u2019<\/em><\/strong>. 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?<\/p>\n

Comparison with anorexia nervosa<\/em><\/strong>. 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 \u2018mental disorder\u2019 in the Mental Health Act 1983 and, by extension, from the Deprivation of Liberty Safeguards regime under the MCA. Through Parliament\u2019s introduction of these provisions, society has expressed the view that there should be this exclusion where the specific syndrome of \u2018dependence\u2019 is concerned. However, short-term effects of substance use \u2013 e.g. intoxication or withdrawal effects \u2013 might give rise to a finding of incapacity with respect to a decision.<\/p>\n

Harm minimisation<\/em><\/strong> measures should be considered \u2013 it should not just be a case of \u2018nothing or deprivation of liberty\u2019. 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.<\/p>\n

When it\u2019s unclear what can be done with a finding of incapacity<\/em><\/strong> \u2013 \u00a0there is a tendency for practitioners to \u2018leap to saying they have capacity or we can\u2019t do a capacity assessment because the alternative would be too restrictive of that person\u2019s freedoms, or not something which is funded [\u2026] There\u2019s something about boldly coming to reasonable conclusions that someone might lack capacity even when it\u2019s not clear what we\u2019re going to do about it, and then struggle with that.\u2019<\/p>\n

Organisational support<\/em><\/strong> should be in place for this kind of professional risk. For example, where someone is self-discharging from hospital it can be \u2018extremely tempting\u2019 to attribute capacity because letting someone self-discharge without capacity might be inherently dangerous for the person, and place responsibility on the professional.<\/p>\n

Political context is relevant<\/em><\/strong>. The tendency in political thinking which prioritises focusing on the individual\u2019s 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.<\/p>\n

Executive dysfunction<\/h2>\n

Difficulty with the concept<\/em><\/strong>. There is a reported \u2018perpetual bafflement\u2019 on the topic and perhaps we (i.e. the roundtable participants) only understand it because we are specialists? It can be a \u2018challenging concept\u2019 and difficult at times to convince clinicians\/practitioners that it is present.<\/p>\n

People with experience<\/em><\/strong>. 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. \u2018Once you learn how to recognise the pattern or the patterns it isn\u2019t that difficult.\u2019 \u00a0A specialist or doctor is not necessarily called for, though an assessment by telephone call will not suffice.<\/p>\n

Assessment environment<\/em><\/strong>. There is the challenge of hospitals being \u2018nowhere near like real life at all\u2019 and therefore not a good place to assess executive function, since executive dysfunction can \u2018melt away\u2019 when cues and structures are in place, for example prompts to eat and wash regularly.<\/p>\n

Cognitive assessments<\/em><\/strong>. Even though cognitive tests aren\u2019t necessarily good at picking up the frontal lobe paradox, they are useful in identifying other cognitive deficits \u2013 yet there is a \u2018massive reluctance\u2019 by practitioners to do these to feed into capacity assessments. Possible reasons include: lack of confidence in administering them and a lack of time.<\/p>\n

The recent upsurge of interest in executive dysfunction<\/em><\/strong>. It has always been good practice to consider what goes on beyond the assessment interview space \u2013 i.e. the ability to make a decision when you need to in the future. Note that not following through on a decision doesn\u2019t necessarily equate to executive dysfunction, and that there might be a deficit in a person\u2019s \u2018life skills ability.\u2019<\/p>\n

Trauma<\/h2>\n

Capacity assessment and therapeutic work<\/em><\/strong>. 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 \u2018therapeutic relationship\u2019 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.<\/p>\n

Timing<\/em><\/strong>. A key question might be: do I need to reach a conclusion about capacity for this decision now<\/em>? It might not be in the person\u2019s best interests to conduct a capacity assessment at this time.<\/p>\n

Trauma and capacity<\/em><\/strong>. 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 \u2013 but the person\u2019s trauma history may mean that \u2018from their perspective it might be the absolutely wisest move they can make [\u2026] we\u2019ve never lived their lives [\u2026] if they didn\u2019t 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?\u2019<\/p>\n

Misunderstanding the \u2018unwise decisions\u2019 principle<\/em><\/strong>. Unfortunately, practitioners sometimes think that you can\u2019t use an \u2018unwise decision\u2019 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.<\/p>\n

Diagnosis\u2026and getting the story<\/em><\/strong>. While the Court of Protection has said that a diagnosis is not necessary when considering the impairment causing an inability to make a decision \u2013 this was described as being \u2018right on the edge\u2019 where trauma is concerned given the lack of clarity as to whether trauma, alone, can constitute a legitimate \u2018impairment of, or [\u2026] disturbance in the functioning of, the mind or brain\u2019 for the purposes of the MCA.<\/p>\n