Mental Capacity Matters with Alex Ruck Keene: Recent Episodes
Alex Ruck Keene
This podcast looks at matters mental capacity related. It features conversations between Alex Ruck Keene, a specialist barrister at 39 Essex Chambers, and a whole host of people with different perspectives on mental capacity questions. It also features audio versions of the 'shedinars' that Alex delivers about key topics in mental capacity law, full versions of which (with slides) can be found here: https://www.mentalcapacitylawandpolicy.org.uk/shedinars/.
(Boring but necessary caveat: nothing that appears on this podcast constitutes legal advice).
In this ‘in conversation with’, I talk to Jacob Jorem, a Norwegian psychiatrist, lawyer and researcher, about the Norwegian experience introducing decision-making capacity into (at least part of) mental health law, why the result of a process designed to reduced coercion was a very significant increase in the number of involuntary orders made, and how to assess why and how legal changes impact on practice.
Two articles explaining the Norwegian experience can be found here.
Impact of introducing capacity-based mental health legislation on the use of community treatment orders in Norway: case registry study
Increased autonomy with capacity-based mental health legislation in Norway: a qualitative study of patient experiences of having come off a community treatment order
I will also update the page when the fruits of the fascinating research Jacob is currently conducting into the Norwegian experience are published.
For the original video, see here: https://www.mentalcapacitylawandpolicy.org.uk/decision-making-capacity-and-mental-health-law-the-norwegian-experience-in-conversation-with-jacob-jorem/
In this “in conversation with”, I talk to Dr Jim Down about a whole host of matters related to intensive care, inspired by his recent book, Life in the Balance. We cover the realities of being in ICU, the interaction between law and ethics, and get into a discussion about the need for honesty about resource allocation (including touching on this paper about deliberative democracy and triage).
For the original video, see here.
To mark 10 years since the publication of the report of the House of Lords select committee convened to conduct post-legislative scrutiny of the Mental Capacity Act 2005, Dr Margaret Flynn, Chair of the National Mental Capacity Forum, joins me in the shed. Our conversation examines where the Act came from, and how we are (or are not) making progress in making it an Act which matters.
For the original video, see here.
In light of the publication of the Westminster Parliament’s Health and Social Care Committee’s (very good) report on assisted dying / assisted suicide on 29 February 2024 and as a modest contribution to informing debate about these issues, I have recorded an ‘informer,’ in which I give an overview of the current law in England & Wales and worldwide, set out some of the reasons why people might want change, and some reasons why people are concerned about it, and then look at what the European Convention on Human Rights and the UN Convention on the Rights of Persons with Disabilities might say of relevance. It is quite a lot for half an hour, and it goes without saying that it is an episode which engages with difficult matters.
For the underlying video, see here.
In this ‘in conversation with’ Professor Gavin Davidson, we discuss the new paper that he has co-authored, entitled Comparing mental health and mental capacity law data across borders: Challenges and opportunities, think about what data is actually useful, and use the example of the island of Ireland to dig into striking differences of approach.
The original video is here.
(The ‘purpose’ clause that we discuss which featured in the report of the Independent Review of the MHA 1983 features at page 67 of here).
In the last 'in conversation' of 2023, I talk to Graham Morgan about his perspective on coercion in mental healthcare, what 'lived experience' means, and what is truly important in the mental health context.
For the original video, see here.
In this ‘in conversation with,’ I am joined by my colleague at 39 Essex Chambers, Arianna Kelly, to talk about her new book, Social Care Charging, and then to look at the issues which arise where decisions about charging and care planning are taking place in relation to those with impaired decision-making capacity.
For the original video, see here.
A review of Arianna’s book can be found in the December 2023 Mental Capacity Report, available here.
In this ‘in conversation’ with, I talk to the editors of the new Routledge Handbook of Mental Health Law, Professors Brendan Kelly and Mary Donnelly, about the genesis and scope of, and insights, from the book. We discuss, amongst other matters, the concepts of mental illness, lived experience, and the scope of the idea of ‘mental health law.’
For the original video, see here.
Full disclosure, I contributed a chapter to the book with Dr Katherine Reidy (on decision-making capacity in mental health law).
For a 20% discount, valid until 1 March 2024, click on this link here.
In this ‘in conversation with’ Dr Julia Duffy, we discuss her new book, the indivisibility of rights, and how we might move beyond a focus on autonomy in the context of cognitive impairment to get a richer understanding of personhood.
The original video can be found here.
Julia’s book is called Mental Capacity, Dignity and the Power of International Human Rights, and is available here.
In this ‘in conversation’ with, I talk to Isabel Astrachan and Dr Scott Kim about the paper we recently published together looking at the ways in which the presumption of capacity in the Mental Capacity Act 2005 (and many other equivalent legislative frameworks in other countries) can be misunderstood, and why ‘suspending’ the presumption in the face of legitimate reason to be concerned about a person’s ability to make a decision is not only the legally, but also the ethically correct thing to do.
For the original video, see here.
The paper we discuss was published in the Journal of Medical Ethics in September 2023, Questioning our presumptions about the presumption of capacity. (If you are not able to access it, please email me at alex.ruckkeene@39essex.com).
In this ‘in conversation’ with, I talk to Dr Magda Furgalska about her research into people's lived experiences of ‘insight’ in the context of (often compulsory) mental health care, and we explore also whether and how it might be possible to move away from reliance upon a concept which finds no formal place in the law.
For the original video, see here.
As (for some at least) a summer break is starting to come to an end, I have recorded a version of a talk that I gave to the Essex Autonomy Project’s 2023 Summer School, taking stock of the mental capacity and mental health law and policy landscape as at August 2023. Its primary focus is on England & Wales, but it also includes developments in the UK and further afield, including thinking about the implications of the French language version of Article 19 CRPD providing not for ‘living independently’, but ‘autonomie de vie’ (Warning, it is longer than a usual shedinar!).
The original video can be found here.
The slides accompanying the talk can be found here.
In this ‘in conversation with’, I talk to Dr Matthé Scholten about self-binding directives, coercion in mental health treatment and how to characterise treatment that is in line with a person’s will but not their current preferences.
For the original video, see here.
Details of the SALUS project Matthé is working on can be found here.
Three articles describing matters discussed in the conversation in more detail are:
- Scholten, M., S. Efkemann, M. Faissner, M. Finke, J. Gather, T. Gergel, L. van der Ham, G. Juckel, A. L. van Melle, G. Owen, S. Potthoff, L. A. Stephenson, G. Szmukler, A. Vellinga, J. Vollmann, Y. Voskes, A. Werning, and G. Widdershoven. 2023. “Opportunities and challenges of self-binding directives: A comparison of research with stakeholders in three European countries.” European Psychiatry 66 (1): e48. https://doi.org/10.1192/j.eurpsy.2023.2421.
- Scholten, M., S. Efkemann, M. Faissner, M. Finke, J. Gather, T. Gergel, L. van der Ham, G. Juckel, A. L. van Melle, G. Owen, S. Potthoff, L. A. Stephenson, G. Szmukler, A. Vellinga, J. Vollmann, Y. Voskes, A. Werning, and G. Widdershoven. 2023. “Implementation of self-binding directives: Recommendations based on expert consensus and input by stakeholders in three European countries.” World Psychiatry 22 (2): 332-333. https://doi.org/10.1002/wps.21095.
- Scholten, Matthé, Laura van Melle, and Guy Widdershoven. 2021. “Self-binding directives under the new Dutch Law on Compulsory Mental Health Care: An analysis of the legal framework and a proposal for reform.” International Journal of Law and Psychiatry 76: 101699. https://doi.org/10.1016/j.ijlp.2021.101699
In this ‘in conversation’ with, I talk to Dr Elisabeth Alton about the pilot forensic service to support safeguarding adults that she has led on, designed to provide an examination service for adults at risk of harm who may have suffered a non-accidental injury as a result of physical abuse or neglect.
For the original video, see here.
Details of ‘Adult A’s’ case that Elisabeth talks about at the start of the video can be found here (and we can confirm that Adult A’s family are aware of, and happy with the fact, that we talk about his case in this video).
The evaluation of the pilot we discuss towards the end is here.
In this ‘in conversation with’, I talk to Dr Kevin Ariyo about the research that he led (as part of the as part of the Mental Health & Justice Project) into interpersonal influence and decision-making capacity, focusing on the way in which this issue has played out in the courts, and asking what the research might tell us about how we can think better about this area.
For the original video, see here.
In this – the 50th! – ‘in conversation’ with, I talk to Abiy Babatunde, research assistant on the Advance Statements for Black African and Caribbean (AdStaC project), which seeks to improve Black service users’[1] experiences in mental health services in South London by co-producing and testing an advance choice implementation resource with Black service users, mental health professionals and carers/supporters of Black service users. Abiy explains how the research came out, how it has been developed, and progress so far. We also discuss how to manage fears on the parts of service users and staff about making and using such advance choice documents, and the benefits of co-producing advance choice documents.
For the original video, see here.
If you want to read more about the project, a good starting point is this article led on by Abiy.
[1] I am conscious that there are a range of terms which could be used here; as the project settled on ‘service user.’ I use that here.
In this 'in conversation with', I talk to Donna Phillips, Head of Safeguarding at Spectrum Community Health CIC, about the challenges that arise where prisoners refuse food, and about her research leading to a new toolkit to help work through the dilemmas that arise.
For the original video, see here.
In this 'in conversation with,' I talk to Siddiq Diwan, Imam and Lead Muslim Chaplain at the Manchester University Hospital Foundation Trust (and Vice Director of the Ethics Council at The British Islamic Medical Association). I learn something of the Islamic perspective on the concepts of capacity and best interests, and think with him about navigating some of the complexities of these issues in the medical treatment context.
For the original video, see here.
In this ‘in conversation with,’ I talk to Professor Shih-Ning Then about supported decision-making, exploring the meaning of the term, how it is understood and what it might mean in different contexts, in the context of a hugely important report on the subject she has contributed to for the Living Disability Research Centre at La Trobe University, commissioned by the Australian Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
The website and e-learning materials for the La Trobe Supported Decision-Making Framework we talk about during our conversation can be found here.
For the original video, see here.
In this ‘in conversation with,’ I talk to Bonnie Venter about her work investigating the complexities of living organ donation in England & Wales, and think about the issues caused where either the proposed donor or the potential recipient has impaired decision-making capacity.
The paper Bonnie and I discuss, published in the Journal of Medical Ethics, and prompted by the case of William Verden, can be found here (it is behind a paywall but if you ask nicely I am sure we can help).
The paper that we talk about led on by Rebecca Thom looking at inequitable access to transplants for adults with impaired decision-making capacity, which appeared in Transplant International in March 2022, can be found here.
For the original video, see here.
In this ‘in conversation with’ across time zones, I talk to Dr Piers Gooding about his work in relation to supported decision-making and the work that he has been involved in drawing together concrete evidence of steps that can be take to reduce (or prevent) coercion in mental health care. Drawing on his experiences, we think about incremental vs ‘big bang’ approaches to reform.
For the original video, see here.
In this ‘in conversation’ with, I learn from (retired) Professor Ken Wilson and Dr Julia Lewis about Alcohol Related Brain Damage and its often subtle impacts upon mental capacity. We also discuss when and why thinking about capacity to manage alcohol is actually useful in the abstract.
For the original video, see here.
In this 'in conversation' with, I learn about the background to the new book co-edited by Daisy Cheung and Michael Dunn, Advance Directives Across Asia: A Comparative Socio-legal Analysis(available as a free ebook here). We discuss the challenges of undertaking comparative research in relation to such a diverse group of jurisdictions (see here for a slide setting out the countries covered, and the types of approach that they have), and I cruelly put both of them on the spot to highlight jurisdictions that they found particularly striking in their approaches.
For the original video, see here.
In the most recent (slightly snuffly) in conversation, I talk to Dr Janet Weston about her fascinating book Looking after Miss Alexander: Care, Mental Capacity, and the Court of Protection in Mid-Twentieth-Century England(available for free here). I learn what led her to tell Miss Alexander's story, what that story tells us about approaches to capacity in the middle of the 20th century, and what it might have to tells us to thinking about contemporary dilemmas.
For the original video, see here.
In May 2022, the Ministry of Justice indicated in its response to the Modernising Lasting Powers of Attorney consultation that it intended to bring forward primary legislation to amend the MCA 2005 to reform a number of key provisions relating to LPAs. Stephen Metcalfe MP introduced in December a Private Members’ Bill, the Powers of Attorney Bill 2022, which has government support, and has progressed beyond second reading.
In this podcast, I do a short walkthrough of the Bill and some of the key changes it is proposing (as well as one key one which is not been proposed.
For the original video, and the resources referred to in the podcast, see here.
The Joint Committee on the Draft Mental Health Bill has today (19 January 2023) published its pre-legislative scrutiny report on the draft Bill. This podcast is a walkthrough of its conclusions and recommendations.
For the original video, see here.
In a slightly different ‘in conversation with,’ in that the tables are turned half-way though and I’m on the spot, Dr Gareth Owen and I reflect on our work on the Mental Health and Justice Project, and discuss the need for (and complexities of) interdisciplinarity in mental health research, drawing on a chapter in a forthcoming book. We then turn to a paper I led on - just published in the Medical Law Review - about whether there has been a paradigm shift in mental capacity law brought about by the Convention on the Rights of Persons with Disabilities, if not, why not, and whether more recent developments mean that it is possible to put some of the more unhelpful debates behind us. We also spend a few minutes at the end looking at new challenges for the concept of capacity posed by moves towards assisted dying/assisted suicide.
For the full discussion, join us here. If you want to come in half-way through and think about capacity paradigms, listen to the next episode.
For the original video, see here.
Our earlier discussion can be found here.
For more about interdisciplinarity in the MHJ context, see here.
The Medical Law Review paper accompanies research-based guidance in relation to capacity assessments available here.
In a slightly different ‘in conversation with,’ in that the tables are turned half-way though and I’m on the spot, Dr Gareth Owen and I reflect on our work on the Mental Health and Justice Project, and discuss the need for (and complexities of) interdisciplinarity in mental health research, drawing on a chapter in a forthcoming book. We then turn to a paper I led on - just published in the Medical Law Review - about whether there has been a paradigm shift in mental capacity law brought about by the Convention on the Rights of Persons with Disabilities, if not, why not, and whether more recent developments mean that it is possible to put some of the more unhelpful debates behind us. We also spend a few minutes at the end looking at new challenges for the concept of capacity posed by moves towards assisted dying/assisted suicide.
If you want to come in half-way through our discussion and think about capacity paradigms, stay here. If you want the full discussion, go to the earlier episode.
For the original video, see here.
Our earlier discussion can be found here.
For more about interdisciplinarity in the MHJ context, see here.
The Medical Law Review paper accompanies research-based guidance in relation to capacity assessments available here.
In this shedinar, I discuss the genesis, findings and headline points of the Judging Values project led by Camillia Kong with Camillia and Professor Penny Cooper.
For the original video, see here.
For more on the research, including the papers and videos that we discuss, see the project website here. For the final project report, see here.
In the first shedinar of 2023, I have done a review of the key cases from the Court of Protection (with one from the Court of Appeal and a 'watch this space' from the Supreme Court) from 2022.
The original video can be found here.
Prompted by a number of situations recently in which I have been concerned that professionals may not always know how to read a Court of Protection judgment and whether, and how, it applies to a similar-sounding situation in front of them (especially reading coverage of https://www.bailii.org/ew/cases/EWCOP/2022/26.html (this case)), I’ve recorded a short (15) minute shedinar on the subject. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/how-to-read-a-court-of-protection-judgment-shedinar/ (here).
In this 'in conversation,' I talk to PhD student David Mason about the research that the King's College London https://www.kcl.ac.uk/research/respect-lab (ReSpect Lab) is undertaking with autistic people into decision-making styles and stresses, and how this research can assist in thinking better about mental capacity assessments in the context of autism. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/decision-making-styles-and-stresses-the-case-of-autism-in-conversation-with-david-mason/ (here).
In this episode, I am joined, not in the shed (under repair), by Professors https://www.napier.ac.uk/people/jill-stavert (Jill Stavert) and https://www.napier.ac.uk/people/colin-mckay (Colin McKay), both members of the executive team of the https://www.mentalhealthlawreview.scot/workstreams/scottish-mental-health-law-review-final-report/ (Scottish Mental Health Law Review) chaired by (Lord) John Scott QC. The Review reported in September 2022, and our discussion explores why the Review was needed, how it was carried out, and its key recommendations. We look in particular at what it means to carry out a review seeking to implement positive rights in the mental health and capacity sphere. Note: the tin cans and string between London and Edinburgh gave up briefly at a couple of moments, for which apologies. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/mental-health-law-reform-the-scottish-perspective-in-conversation-with-professor-jill-stavert-and-professor-colin-mckay/ (here).
In the latest ‘in conversation with,’ https://en.wikipedia.org/wiki/Shubulade_Smith (Dr Lade Smith CBE) and I talk about advance choice documents in the mental health context, their potential, and the prerequisites for making them work. The original video can be found here.
In this ‘in conversation’ with https://staffprofiles.bournemouth.ac.uk/display/aphippen1 (Professor Andy Phippen), we talk about online safeguarding, capacity, and why Andy really dislikes the term ‘online safety’. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/online-safeguarding-capacity-and-rights-to-participation-in-conversation-with-professor-andy-phippen/ (here). The book that Andy has written with https://www.uos.ac.uk/people/prof-emma-bond#:~:text=Professor%20Emma%20Bond%20is%20Pro,at%20the%20University%20of%20Suffolk. (Professor Emma Bond) we discuss is this: https://policy.bristoluniversitypress.co.uk/adult-safeguarding-online (Safeguarding Adults Online – Perspectives on Rights to Participation).
In this ‘in conversation’ with Dr Lucy Stephenson, we talk about a pilot project she has led on as part of the Wellcome-funded https://mhj.org.uk/workstreams/3-advance-directives/ (Mental Health and Justice Project) which aimed to co-produce and evaluate implementation strategies for advance choice documents with those who experience fluctuating mental capacity in the context of bipolar. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/piloting-co-produced-advance-choice-documents-in-conversation-with-dr-lucy-stephenson/ (here). The paper we are talking about can be found (for free) https://wellcomeopenresearch.org/articles/7-182/v1?src=rss (here). And you can hear younger versions of both Lucy and I talking about her work at a much earlier stage https://player.captivate.fm/episode/3d771ccc-cce6-47cc-9af2-689a780d8983/ (here).
In this conversation, I talk to https://twitter.com/DrChloeBeale?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor (Dr Chloe Beale) about the uses and misuses of capacity in the context of responding to suicide risk. Warning, we do get quite deep into the issues involved. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/suicide-and-the-misuse-of-capacity-in-conversation-with-dr-chloe-beale/ (here). The paper by Wren Aves we discuss is: “If you are not a patient they like, then youhave capacity”: Exploring Mental Health Patient and Survivor Experiences of being told “You Have the Capacity to End Your Life”. Psychiatry is Driving Me Mad. 2022. DOI:http://dx.doi.org/10.13140/RG.2.2.34386.84163 (10.13140/RG.2.2.34386.84163) The paper by Dr Lucy Series Chloe mentions is: “The ‘you’ve got the capacity to choose to kill yourself’ phenomenon, and what we can do about it,” available https://thesmallplaces.wordpress.com/2022/06/10/the-youve-got-the-capacity-to-choose-to-kill-yourself-phenomenon-and-what-we-can-do-about-it/ (here). A paper by Chloe which looks at some of these issues is “Magical thinking and moral injury: exclusion culture in psychiatry,” available in the BJPsych Bulletin https://www.cambridge.org/core/journals/bjpsych-bulletin/article/magical-thinking-and-moral-injury-exclusion-culture-in-psychiatry/E41B47079D935213DCC074A03A351712 (here). My legal take on these issues is https://www.mentalcapacitylawandpolicy.org.uk/capacity-and-suicide/ (here).
In a departure from my previous outings, I have recorded a three way conversation with https://compassionindying.org.uk/about-us/staff/ (Usha Grieve) and https://compassionindying.org.uk/about-us/staff/ (Sarah Malik) of the charity Compassion in Dying, reflecting on the promises and pitfalls of advance decision-making – and we take a moment in the middle to think about a complicated path we could take conversationally: but I won’t spoil the surprise here! For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/the-mca-advance-decisions-and-shifting-the-dial-in-conversation-with-compassion-in-dying/ (here). The website for Compassion in Dying we talk about is https://compassionindying.org.uk/making-decisions-and-planning-your-care/ (here).
In this conversation, I talk to Ilora Finlay (https://members.parliament.uk/member/3609/career (Baroness Finlay of Llandaff)), the first Chair of the National Mental Capacity Forum, reflecting on the tasks she faced pre-pandemic to champion the MCA, and the particular challenges of the MCA under strain in the pandemic. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/mental-capacity-challenges-and-commitment-in-conversation-with-ilora-finlay/ (here).
In this conversation, I talk to https://mcpin.org/thomas-kabir/ (Dr Thomas Kabir) about his work with the https://mcpin.org/ (McPin Foundation), and co-chair of the Service User Advisory Group for the https://mhj.org.uk/ (Mental Health and Justice Project), about do’s and don’ts in involving those with lived experience in research in the mental health field. For the original video, see here.
In this conversation, I talk to https://www.cai.cam.ac.uk/people/dr-zo%C3%AB-fritz (Dr Zoë Fritz), Wellcome fellow in Society and Ethics and a Consultant in Acute Medicine at Addenbrooke's Hospital, about her work developing the https://www.resus.org.uk/respect (ReSPECT) framework to prompt and record discussions about the shared understanding required as between doctors and patients to enable proper advance care planning. We also pick up on what F stands for in Dr ABCDEF. For the original video, see here. The https://www.39essex.com/cop_cases/r-david-tracey-v-cambridge-university-hospitals-nhs-foundation-trust-ors/ (Tracey) case we discuss is summarised here; the https://www.39essex.com/cop_cases/elaine-winspear-v-city-hospitals-sunderland-nhs-foundation-trust/ (Winspear) case we discuss is summarised here.
In this conversation, I talk to https://essl.leeds.ac.uk/law/staff/185/dr-beverley-clough (Dr Bev Clough) about her new book, https://www.mentalcapacitylawandpolicy.org.uk/the-spaces-of-mental-capacity-law-moving-beyond-binaries-beverley-clough-routledge-2021/ (The Spaces of Mental Capacity Law Moving Beyond Binaries), and dig into two of the binaries she covers – autonomy vs paternalism and public vs private. We also get into a discussion about the scope of the inherent jurisdiction in relation to adults. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/can-we-move-beyond-binaries-in-thinking-about-capacity-and-disability-in-conversation-with-dr-bev-clough/ (here.)
In this conversation, I talk to Jodie Rawls about her research as part of the https://mhj.org.uk/ (Mental Health & Justice) project into support in the context of intellectual disability in relation to contraception, including fascinating – and challenging – insights from her interviews. I also talk to her about the https://www.choicesupport.org.uk/about-us/what-we-do/supported-loving/supported-loving-toolkit/contraception (toolkit) for supporting decision-making around contraception produced by the Supported Loving network to which she contributed. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/contraception-support-and-intellectual-disability-in-conversation-with-jodie-rawls/ (here).
In this conversation, I ask Dr Lucy Series about her book Deprivation of liberty in the shadows of the institution (available https://bristoluniversitypress.co.uk/deprivation-of-liberty-in-the-shadows-of-the-institution (here), for free, thanks to the Wellcome Trust) looking at the tangled history of deprivation of liberty, social care detention, Cheshire West and its legacies, and the concept of the empowerment entrepreneur. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/deprivation-of-liberty-in-the-shadows-of-the-institution-in-discussion-with-dr-lucy-series/ (here).
In this ‘in conversation’ with Dr Tim Meek, we discuss the role of anaesthetists before and during operations, how they approach DNACPR documents, and new guidelines produced by the Association of Anaesthetists (available https://associationofanaesthetists-publications.onlinelibrary.wiley.com/doi/full/10.1111/anae.15653 (here)). The original video is available https://www.mentalcapacitylawandpolicy.org.uk/implementing-advance-care-plans-in-the-peri-operative-period-the-anaesthetic-perspective/ (here). Boring but necessary caveat, nothing constitutes legal advice.
In this ‘in conversation with’ the Revd Phil Sharkey, we discuss his book ‘Words to Remember,’ reflective listening, and the importance of time in reaching those who may seem beyond the bounds of ordinary communication. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/seeing-wondering-and-realising-in-conversation-with-the-reverend-phil-sharkey/ (here).
This podcast, recorded in December 2021, seeks to set out the key messages about the application of the Mental Capacity Act 2005 under the pressures of the pandemic. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/the-mca-and-covid-19-video/ (here). Boring but necessary caveat, nothing here constitutes legal advice.
In this podcast, recorded in December 2021, I discuss what to do whilst we wait for the Liberty Protection Safeguards to be implemented, in light of the https://www.mentalcapacitylawandpolicy.org.uk/lps-will-not-be-april-2022-formal-confirmation/ (announcement of the delay) in December 2021. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/waiting-for-lps-video/ (here). Boring but necessary caveat, nothing here constitutes legal advice.
In this “in conversation with” the palliative care specialist Dr Idris Baker, we start with a simple question: “what is a decision” and examine it from the perspective of both medicine and the law, and then spiral out to look at a range of issues including advance decision-making, and self-reflection in determining best interests. For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/in-conversation-with-dr-idris-baker-what-is-a-decision/ (here).
For my video walkthrough, see: https://vimeo.com/648537905 (https://vimeo.com/648537905). For more see https://my.captivate.fm/www.mentalcapacitylawandpolicy.org.uk (www.mentalcapacitylawandpolicy.org.uk). Boring but necessary caveat, nothing constitutes legal advice.
The MCA 2005 came into force 14 years ago today, 1 October 2007. To mark its birthday, I've recorded a walkthrough of my top 10 Court of Protection health and welfare cases. The slides accompanying it (with hyperlinks to the cases) are https://www.mentalcapacitylawandpolicy.org.uk/wp-content/uploads/2021/10/The-CoP-top-10.pptx (here). For more, see https://www.mentalcapacitylawandpolicy.org.uk/ (Mental Capacity Law and Policy) Boring but necessary caveat, nothing constitutes legal advice.
In this ‘in conversation’ with https://www.birmingham.ac.uk/staff/profiles/law/harding-rosie.aspx (Professor Rosie Harding), we discuss accessible information and how making information accessible constitutes a practicable step to support decision-making under the MCA 2005. For more see https://my.captivate.fm/www.mentalcapacitylawandpolicy.org.uk (www.mentalcapacitylawandpolicy.org.uk).
In this ‘in conversation’ with Alix Lewer, founder of https://include.org/ (Include.org), we discuss the work of the Include choir, the role of music in supporting those with communication impairments, and how people can be educated by stealth as to what constitutes practicable steps to support capacity. For more see https://my.captivate.fm/www.mentalcapacitylawandpolicy.org.uk (www.mentalcapacitylawandpolicy.org.uk).
In this "in conversation with" https://www.nsun.org.uk/faqs/akiko-hart (Akiko Hart), Chief Executive of the National Survivor Users Network, we discuss the challenges of responding to reform proposals in relation to mental health law and practice as a membership organisation, and also get into some of the thorny issues around mental health reform more generally. For more see www.mentalcapacitylawandpolicy.org.uk.
In this “in conversation with” https://www.intensivecarespecialists.co.uk/mediation/ (Dr Chris Danbury), we discuss the impact of the Supreme Court decision in Aintree v James, the concept of futility, and mediation in clinical negligence and serious medical treatment cases. For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/mediation-and-medical-cases-reflections-on-process-and-outcomes/ (here).
In this “in conversation with” Helen Gilburt at the King’s Fund, we discuss the report she has authored (February 2021) on Understanding clinical decision-making at the interface of the Mental Health Act (1983) and the Mental Capacity Act (2005), most easily accessed by this blog https://www.kingsfund.org.uk/blog/2021/02/tale-two-acts-mental-health-act-and-mental-capacity-act (here). For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/the-messiness-of-the-interface-between-the-mha-and-the-mca-in-conversation-with-helen-gilburt/ (here).
In this shedinar, I look at the MCA and 16/17 year olds. This is a complicated area, so this can serve only as an overview. As I note in the video, the law in this area is evolving, and this represents the position as at the end of January 2021. I will seek to do an updated shedinar in due course to keep abreast of the position. For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/shedinar-the-mca-and-16-17-year-olds/ (here).
In this “in conversation with” Dr Nuala Kane, Nuala discusses the work that she has been leading on under the umbrella of the Mental Health and Justice Project developing a typology of capacity rationales, how this might help determinations be more transparent, and to target support. For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/shedinar-in-conversation-with-dr-nuala-kane-capacity-rationales-accountability-and-support/ (here).
This “in conversation with” is, in part, shameless self-promotion, to mark the publication of the second edition of https://global.oup.com/academic/product/law-and-ethics-in-intensive-care-9780198817161?cc=gb&lang=en& (Law and Ethics in Intensive Care) (Oxford University Press, £39.99), which I co-edited with Chris Danbury, Chris Newdick and Carl Waldmann. It is also, however, hopefully also a useful discussion between two lawyers (Chris Newdick and I) and two intensivists (Chris Danbury and Carl Waldmann) about how the law and medicine work together in ICU, and what ramifications this might have for the interaction in other areas. (And we also get to see how the NHS does, indeed, run on tea). For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/in-conversation-with-the-editors-of-law-and-ethics-in-intensive-care-2nd-edition/ (here).
In this “in conversation with” the psychiatrist and bioethicist https://irp.nih.gov/pi/scott-kim (Dr Scott Kim), Scott gives a ‘critical friend’ perspective from the US upon the MCA, and we delve into some of the consequences of approaching best interests from the perspective of standing in the shoes of the person. For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/a-critical-friend-perspective-on-the-mca-and-the-consequences-of-standing-in-the-shoes-of-p-in-conversation-with-scott-kim/ (here).
In this “in conversation with” http://metacoglab.org/people (Dr Steve Fleming), a cognitive neuroscientist and psychologist, we dig into the concept of metacognition and how work being done in the lab may start to shed light on the contested concepts of insight and decision-making capacity. For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/metacognition-insight-and-mental-capacity/ (here).
This episode is a conversation with the Revd Dr Geoff Morgan, a hospital chaplain and former IMCA, in which we discuss spirituality, advocacy, the MCA and the difference small things can make. For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video, see https://vimeo.com/463093954 (here). Boring but necessary caveat, nothing here constitutes legal advice.
In this “in conversation with” Emma Overton, Policy and Practice Development Lead at North East Lincolnshire CCG, we discuss commissioning, joined up thinking, and learning lessons from cases where steps have not been taken to consider how to enable medical treatment to be delivered to those with impaired decision-making capacity. For more, see http://www.mentalcapacitylawandpolicy.org.uk/ (mentalcapacitylawandpolicy.org.uk). For the original video, see https://vimeo.com/458167853 (here). Boring but necessary caveat, nothing here constitutes legal advice.
In this "in conversation with" George Szmukler, we discuss the idea of fusion law - i.e. a law which would replace separate mental health and mental capacity legislation with legislation based solely upon mental capacity and best interests. For more, see http://www.mentalcapacitylawandpolicy.org.uk/ (mentalcapacitylawandpolicy.org.uk). For the original video, see https://vimeo.com/454705291 (here). Boring but necessary caveat, nothing here constitutes legal advice.
In this "in conversation with" Professor Wayne Martin, we dig into the concept of 'insight' and tease out how it might relate to mental capacity, drawing upon ongoing work that he is doing as part of the Wellcome-funded Mental Health and Justice Project (www.mhj.org.uk). For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video see https://www.mentalcapacitylawandpolicy.org.uk/insight-and-capacity-in-conversation-with-professor-wayne-martin/ (here). Boring but necessary caveat, nothing here constitutes legal advice.
In this ‘in conversation’ with https://kclpure.kcl.ac.uk/portal/tania.l.gergel.html (Dr Tania Gergel), we think about what philosophy can bring to thinking about mental capacity, have a chewy discussion about the (mis)use of the presumption of capacity and start getting into advance decision making and problems of personhood. For more, see www.mentalcapacitylawandpolicy.org.uk. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/shedinar-in-conversation-with-dr-tania-gergel-philosophy-capacity-presumptions-and-personhood/ (here).
In this episode, https://en.wikipedia.org/wiki/Shubulade_Smith (Dr Lade Smith CBE) and I discuss the ways in which capacity assessments under the MCA do and do not capture the cultural aspects of capacity, and the consequences for discrimination. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/race-culture-and-capacity-in-conversation-with-dr-lade-smith-cbe/ (here). Boring but necessary caveat, nothing constitutes legal advice.
A short introduction to DNAPCR and advance care planning, in the hopes that it will assist people to get the law right in this area. For the original video with slides, see https://www.mentalcapacitylawandpolicy.org.uk/dnacpr-and-advance-care-planning-getting-it-right/ (here).
An episode looking at the fundamentals of deprivation of liberty - how to identify one, and what to do where one has arisen. For the original video with slides, see https://www.mentalcapacitylawandpolicy.org.uk/deprivation-of-liberty-getting-it-right-webinar/ (here).
In this episode, https://www.linkedin.com/in/camilla-parker-ba179729/?originalSubdomain=uk (Dr Camilla Parker) and I discuss the complexities of the law relating to deprivation of liberty in this area, and go through the https://www.researchinpractice.org.uk/all/publications/2020/march/deprivation-of-liberty-and-16-17-year-olds-practice-guide-2020/ (practice guidance) we have produced for Research in Practice. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/deprivation-of-liberty-and-16-17-year-olds-shedinar/ (here).
In this episode, I take on the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005, looking at the position both inside and outside hospital. For the original video with slides, see https://www.mentalcapacitylawandpolicy.org.uk/shedinar-the-dread-mha-mca-interface/ (here).
An episode looking at the fundamentals of best interests, assessment and determination. For the original video with slides, see https://www.mentalcapacitylawandpolicy.org.uk/best-interests-getting-it-right-webinar/ (here). Boring but necessary caveat: nothing here constitutes legal advice.
A short introduction to the Court of Protection: what is it, what does it do, how does it do it, and when to go to it. For the original video with slides, see https://www.mentalcapacitylawandpolicy.org.uk/the-shedinar-series-the-court-of-protection/ (here).
An episode looking at the fundamentals of capacity and capacity assessment. For the original video with slides, see https://www.mentalcapacitylawandpolicy.org.uk/capacity-the-key-points-webinar/ (here).
In this episode, I look at the inherent jurisdiction of the High Court as it relates to adults. This is a complicated area and I concentrate, in particular, on the situation where the person is at risk from others. For more guidance, and further discussion of the situation where the inherent jurisdiction might be considered where the sole risk appears to be that from the person themselves, see our Chambers guidance note on the inherent jurisdiction available here. For the original video with slides, see https://www.mentalcapacitylawandpolicy.org.uk/the-inherent-jurisdiction-of-the-high-court/ (here). .
In the latest ‘in conversation with’, I talk to Lorraine Currie about her twin perspectives on the Mental Capacity Act 2005, as a social worker and MCA lead on the one hand, and, on the other, as a builder of invisible scaffolding for her daughter Grace, who has an acquired brain injury. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/living-the-mca-in-practice-in-conversation-with-lorraine-currie/ (here).
In this conversation, I ask Dr Lucy Series about her Wellcome funded research, and we discuss, in particular, the long and complex history of confinement, and why Cheshire West may be a case of be careful what you wish for. The original video can be found https://www.mentalcapacitylawandpolicy.org.uk/the-long-and-winding-road-to-the-great-confinement-in-conversation-with-lucy-series/ (here).
In the latest ‘in conversation with’, Dr Lucy Stephenson and I discuss the Wellcome-funded PACT project to develop advance decision-making tools for people living with bipolar disorder. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/advance-decision-making-bipolar-and-overcoming-fears-in-conversation-with-dr-lucy-stephenson/ (here).
In this episode, I learn about the work of Gill Loomes-Quinn, who (in her words) is a disabled scholar-activist, with a background in community advocacy. We discuss, in particular, her PhD research around advance decision-making in the context of disability (and her cat makes an important contribution right at the end). For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/advance-decisions-and-disability-rights-in-conversation-with-gill-loomes-quinn/ (here).
In this episode, I talk to https://www.bmj.com/about-bmj/advisory-panels/ethics-committee/julian-sheather (Julian Sheather), special adviser in ethics and human rights to the British Medical Association. Amongst other topics we look at decision-making in relation to older adolescents, and grapple with some of the ethical underpinnings to the Mental Capacity Act 2005. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/law-and-ethics-in-conversation-with-julian-sheather/ (here).
The latest ‘in conversation from the shed’ is with the psychiatrist, Dr Gareth Owen, in which we discuss what makes some capacity assessments complex, some tips for addressing messiness, and the importance of time. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/capacity-complexity-and-time-a-discussion-with-gareth-owen/ (here).
In this episode, I talk to Jakki Cowley, an inspirational Independent Mental Capacity Advocate. The conversation ranges widely over subjects such as what IMCA advocacy constitutes, top tips for engaging with medical teams and advocacy for those in Prolonged Disorders of Consciousness. For the original video, see here: https://www.mentalcapacitylawandpolicy.org.uk/the-shedinar-series-the-imca-conversation/.
The palliative care consultant https://www.cardiff.ac.uk/people/view/1197572-taubert-mark (Dr Mark Taubert) and I have recorded a two-part conversation about the interaction between law and medicine in the context of advance care planning. This is Part 2, in which I put the questions to Mark. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/advance-care-planning-the-conversation-part-2/ (here).
The palliative care consultant https://www.cardiff.ac.uk/people/view/1197572-taubert-mark (Dr Mark Taubert) and I have recorded a two-part conversation about the interaction between law and medicine in the context of advance care planning. This is Part 1, in which I put the questions to Mark. For the original video, see https://www.mentalcapacitylawandpolicy.org.uk/advance-care-planning-the-conversation-part-2/ (here).