Tom Palmer MD(Res) Scholarship 2018:   Nuala Kane; Kings College London.  Title: Contested Capacity Assessments

Supervisors: Dr Gareth Owen, Alex Ruck Keene, Dr Scott Kim


Summary:  Patient decision-making is a critical issue in provision of mental health treatments. Assessment of decision-making capacity is increasingly central to mental health policy and practice, and many mental health problems have been linked with temporary loss of decision-making capacity for treatment or other decisions. Consider a young woman with anorexia whose weight is dangerously low but who refuses tube feeding - does she have the right to make her autonomous (if unwise) decision, or should the decision be made by others, bound by law to act in her best interests? There are many cases where assessment of capacity is hard or contested. I am particularly interested in how an assessor interacts with the assessed person’s individual values and beliefs relating to the decision at hand. This project takes a qualitative approach in order to clarify the clinical and legal factors that make some capacity cases difficult. I will interview liaison psychiatrists and legal professionals, and carry out focus groups with social workers, to explore the views and experiences of practitioners on their most difficult capacity assessments. I will use these findings, along with information from my team’s review of capacity cases at the Court of Protection, to categorise difficult cases in a way that will usefully contribute to the policy debates on mental health law reform in the UK and beyond. With service user input from the McPin Foundation, I will then design and test educational material aimed at helping practitioners to approach hard capacity assessments.

Scientific goal: This project aims to contribute to mental health policy and medical education through exploring what makes a proportion of capacity assessment cases contested or hard, and using this data to produce and test an educational intervention directed at helping clinicians to approach difficult capacity assessments.

Research Student: Nuala Kane

I am a medical graduate of NUI Galway in Ireland and a psychiatry trainee on the Maudsley Training Programme with clinical interests in liaison and older adult psychiatry. I am currently working as a clinical research associate on King’s College London’s Mental Health and Justice project on Contested Capacity Assessments.


I have a longstanding interest in ethical concerns in mental health care and mental health policy. Before I started psychiatry training, I completed an MSc in Philosophy of Mental Disorder at King’s College London, writing my dissertation on advance directives for patients with bipolar disorder. I adapted this dissertation as an article published in the Journal of Evaluation in Clinical Practice, focusing specifically on the role of capacity assessments in this area. During my clinical training, I also completed two clinical audits relating to the Mental Capacity Act in practice and policy. I have a strong interest in medical education, and have experience as a teacher on Extreme Psychiatry, a unique psychiatry and anti-stigma course for third year medical students using simulation methods.


My research focuses on difficult or contested capacity assessments, and involves exploring the role of the assessed person’s beliefs and values in these capacity assessments. I am lucky to have a supervisory team with expertise spanning psychiatry, law and bioethics, and to work within a collaborative and interdisciplinary research network. I am delighted to have been awarded the Tom Palmer Mental Health Research UK MD(Res) award which will allow me to complete my part-time MD(res) at the Institute of Psychiatry, Psychology and Neuroscience.

Progress Report Year 2 2020


This year I worked on my part-time MD(res) on Contested Capacity Assessments alongside my clinical role as a higher trainee in psychiatry. The Covid-19 crisis made this a strange year, with increased clinical workload. I had the opportunity to deliver a two-part educational session on ‘Decision-making and Covid-19’ to psychiatrists around the UK, as part of the Informed webinar series, which allowed me to draw on my research on decision-making capacity. In July, I presented my work so far to the Psychological Medicine committee in KCL and was successful in achieving the ‘upgrade’ to proceed with my MD(res) degree.


I wrote up my analysis of Court of Protection judgments, looking at rationales given by judges and court experts for why the subject was found to have or lack capacity, as a paper entitled ‘Applying decision-making capacity criteria in practice: A content analysis of court judgments’. I have submitted this to a journal for consideration and it is currently under review.


My work on this study highlighted an interesting aspect of capacity judgments that was beyond the scope of the study, the question of how interpersonal influence (for example, pressure from a family member) might impair a person’s decision-making ability in some instances. I worked with a PhD colleague to examine this question and we completed preliminary analysis on relevant court judgments; this work is continuing at the moment.

I had a letter published in the British Journal of Psychiatry entitled ‘Avoiding hard capacity assessments will not help’. This flowed from my experience preparing educational materials for a masterclass on ‘Approaching Complex Capacity Assessments’, which I delivered last year, and gave me the opportunity to flag up the importance of more research to help clinicians facing complex capacity assessments.


My next steps are:


  • To carry out a narrative literature review on hard capacity cases and the role of beliefs and values in capacity assessments.

  • To carry out a framework or thematic analysis of the psychiatrist interviews, focusing on beliefs and values of the person being assessed and how these interact with the capacity assessment. 

  • To combine the above and to write up a clinical-ethical paper for submission to an academic journal.

  • To use the findings from my research to prepare educational guidelines on approaching hard capacity assessments.


Progress Report Year 1, 2019

Since receiving the Tom Palmer Mental Health Research UK scholarship and commencing my part-time MD(res) at King’s College London in February 2018, I have started my research on Contested Capacity Assessments.


My first project involved examining judgments from the Court of Protection to find out more about capacity disputes which go to court. I found 40 dispute cases and examined their characteristics, looking more closely at some of the interesting cases. I co-wrote a paper on this work, which was published in the International Journal of Law and Psychiatry.


I then looked more closely at the larger body of court judgments which deal with capacity assessments. I carried out a close content analysis of 131 judgments to examine the rationales given by judges and court experts for why the subject was found to have or lack capacity. After multiple coding iterations, with my supervisor I developed a typology of these rationales with a view to helping assessors of capacity to carry out more structured and fair capacity assessments. I developed this into educational materials. I also gave a presentation of this work at a Mental Health and Human Rights conference in Bochum, Germany, presented a poster at the Royal College of Psychiatry Liaison Faculty Conference in London, and I am currently writing a paper for submission to a clinical journal.


The second project involved an interview study, aiming to explore how experienced practitioners approach and resolve complex capacity assessments and to learn from them. I recruited and interviewed 37 psychiatrists and supported my supervisor in carrying out 23 lawyer and 7 judge interviews. I carried out preliminary focused analysis on these interviews, looking at factors associated with complexity in capacity cases and tactics for support of decision-making and resolution of difficult assessment. I used this to prepare educational materials on resolving complexity in assessment and on supporting people to make their own decisions.


My third project involved delivery of these educational materials to an audience of health and social care professionals who wanted to improve their skills in approaching complex capacity assessments. I developed a programme for a one-day masterclass and delivered this on two occasions. I developed a novel evaluation measure to test knowledge, attitudes and confidence before and after this intervention. With the help of a KCL medical student, Eveliina Ilola, I am analysing this data to see if our masterclass made a difference to our attendees.


I am so grateful for the opportunities this scholarship has given me, and my next steps are as follows:

  • I will finish writing up my work on the typology of capacity rationales to help guide more structured capacity assessments.

  • I will complete my educational evaluation, which will also involve interviews with the course attendees to see if their learning helped them in their practice.

  • I will carry out a literature review on the role of beliefs and values in capacity assessments.

  • Finally, I will do a more thorough qualitative analysis of the interview data, with a focus on the beliefs and values of the person being assessed and how these interact with the capacity assessment.