The most recent publication from the Mental Health and Justice project is an article published in Frontiers in Psychiatry on 11 July 2022 led on by Dr Nuala Kane, digging into ‘difficult’ capacity cases. Called Difficult Capacity Cases—The Experience of Liaison Psychiatrists. An Interview Study Across Three Jurisdictions, we explain the motivation for the article in the introduction:
Assessment of capacity for treatment and discharge decisions is common in the general hospital. Liaison psychiatrists are often asked to support the treating medical or surgical team in difficult capacity assessments. However, empirical research on identification and resolution of difficult capacity cases is limited. Some studies have identified certain patient, decisional, and interpersonal factors which cause difficulty, but no study has explored how these issues are resolved in practice. Our study therefore aimed to describe how experienced liaison psychiatrists identify and resolve difficult capacity cases in a general hospital setting.
Methods: We carried out semi-structured interviews with 26 liaison psychiatrists from England, Scotland, and New Zealand, on their most difficult capacity cases. Thematic analysis was used to examine types of difficulty and how these were resolved in practice. Summaries were prepared and example quotes extracted to illustrate phenomena described.
Results: We identified four types of difficulty in capacity assessment, spanning both clinical and ethical domains: 1) Difficulty determining whether the decision is the patient’s own or driven by illness, 2) Difficulty in applying ethical principles, 3) Difficulty in avoiding personal bias, and 4) Procedural difficulties. The liaison psychiatrists presented as self-reflective and aware of challenges and pitfalls in hard cases. We summarized their creative strategies to resolve difficulty in assessment.
The paper stands alongside the other outputs from the ‘contested capacity’ workstream of Mental Health & Justice, including:
- Taking capacity seriously: 10 years of capacity disputes before the Court of Protection: an article in the International Journal of Law and Psychiatry, which outlines the history of the functional model in England and Wales, and the development of the Court of Protection. It also presents empirical and case-based study of 40 published cases of capacity disputes presented to the Court of Protection, or to the Court of Appeal on appeal from the Court of Protection, during the first ten years of its existence.
- Applying decision-making capacity criteria in practice: A content analysis of court judgments, published in PLOS ONE in February 2021, looking at the way in which the ‘functional test’ within the MCA is broken down into ‘capacity rationales’ in practice. A shedinar about the article with Nuala, the lead author, can be found here.
- Broad concepts and messy realities: optimising the application of mental capacity criteria: an article published in the Journal of Medical Ethics in July 2021, digging into how to make capacity assessments more granular and transparent. An accompanying blog by the lead author, Dr Scott Kim, is here.
And last, but very much not least, the website established by the team to seek to provide practical, research-based guidance for clinicians and social care professionals on the assessment of capacity.
 I say ‘we’ because, whilst Nuala led on the interviews and on drafting the paper, other members of the ‘contested capacity’ workstream contributed to the article, namely Drs Gareth Owen and Scott Kim, and I.