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The Mental Capacity Act 2005 came into force in England and Wales during 2007. The Act enshrines a legal right to autonomy (negative and positive) of people lacking decision-making capacity, such as people with dementia. This paper examines the extent to which the legislation promotes the social citizenship of people with dementia, focusing on its effectiveness in protecting liberty and promoting self-determination and in providing social rights to facilitate autonomy. In particular, the author considers the degree to which the Act will facilitate decision-making by people with dementia, centring on decisions relating to where to live (at home or in an institution). In addition, the historical detention (usually informal) of people with dementia in institutional care, and the role of the Act in promoting recognition of their right to liberty, is highlighted. However, the author points out that the civil rights to liberty and self-determination accorded under the Act – particularly the right to decide where to live – are restricted rights only, as the views of the person lacking capacity can be over-ridden by the decisions of others. In addition, the facilitation of these civil rights is constrained by a lack of access to social rights, particularly the availability of domiciliary and community services to avoid institutional admission. Consequently, whilst the legislation promotes the social citizenship of people with dementia, it has limited capacity to facilitate their full citizenship status. [ABSTRACT FROM AUTHOR]

This paper reports on data collected in 2011 from a national study about the operation of the best interests principle, a key feature of the Mental Capacity Act (MCA) 2005 for England and Wales. The objective was to provide a picture of current professional practices in best interests decision-making. Four contrasting sample sites were selected, in which National Health Service trusts, social care and other organisations were recruited to participate. A multimethod design was followed, including an online survey with 385 participants, followed by qualitative research through a telephone survey of 68 participants, and face-to-face semi-structured interviews following up 25 best interests cases, with different perspectives on the process in 12 of those cases. The current paper reports only on the qualitative findings. The findings indicate that the MCA was successful in providing a structure for these practitioners, and that the five principles of the MCA were in general adhered to. A variety of perceived risks led to best interests processes being undertaken, and a typical scenario was for a period of hospitalisation or ill health to trigger a best interests decision process about a social care and or a life decision. The study supported previous research in finding the notion of capacity the most difficult aspect of the MCA, and it provides evidence of some specific capacity assessment practices, including problematic ones relating to 'insight'. Best interests decisions were often made by consensus, with practitioners taking on different roles within the process. Meetings played a key part, but other ways of involving people lacking capacity and significant others were also important. It was recommended that the issues highlighted in this research could be clarified further in the Code of Practice, or within risk guidance., (© 2013 John Wiley & Sons Ltd.)

The Mental Capacity Act 2005 introduced legal safeguards (which came into force in April 2009) aimed at protecting the liberty of people lacking capacity admitted to institutions in England and Wales. This paper discusses the adequacy of the Deprivation of Liberty Safeguards for protecting the liberty of residents in social care settings and the role of regulation in monitoring their implementation. In particular, the potential impact of planned unitary regulation on the regulator's ability to protect residents' liberty is critiqued, centring on people with dementia living in care homes. It is suggested that the capacity of the safeguards to adequately protect the liberty of residents with dementia may be limited by under-recognition of the extent to which deprivation of liberty can actually occur in care homes, insufficient resourcing and a lack of critical independence in their proposed implementation. In addition, the planned contraction of regulation--especially a reduction in inspections--will constrain the regulator's ability to ensure that residents' right to liberty is protected. The author concludes that the new model of regulation adopted by the UK government has prioritised economic efficiency over safeguarding the right to liberty of vulnerable residents in institutions.