Decision-making capacity in clinical and research settings

Clinical Center

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Abstract

During the past project year, two studies were completed. First, we reviewed 40 contested cases from the Court of Protection (as well as few appeals cases) during its first 10 years of existence in England and Wales. We found that in 70% of cases the subject of proceedings (or P) had either a learning disability or dementia, and the court ruled on P's capacity for a wide range of issues, most commonly residence, care and contact. The judge considered the support principle, or whether practical steps were taken to maximise P's capacity, in 23 of 40 (57.5%) cases. The subject P was determined to have capacity in 13 cases, to lack capacity in 22 cases, and in 5 cases P was found to have and lack capacity for different issues before the court. The functional inability to use or weigh relevant information was most commonly cited by the judge, being cited in all but 2 cases in which P was determined to lack capacity and inabilities were cited. The second study focused on how the courts (judges and expert consultants to the court) interpreted the decision making criteria in the Mental Capacity Act. We analyzed 131 Court of Protection cases and created a typology of capacity rationales that appeared to underlie the judgments of the judges/experts. This typology has 9 rationales (with two having subcategories, so that total categories = 13). We are currently in the process of further analyzing the associations between these rationales with the MCA criteria and the various disorders that form the basis for incapacity. We anticipate finishing this study and submitting the MS in the early part of next project year.