From Legislative Intent to Hospice Practice: Exploring the Genealogy of The Mental Capacity Act 2005

Abstract

The Mental Capacity Act 2005 (MCA) regulates decision-making for people without capacity. Post-legislative scrutiny of the Act in 2014 by a House of Lords Select Committee concluded that the MCA was neither well understood nor working well in practice. The aim of the research discussed in this article was to consider how the Act’s principles are understood and interpreted in hospice practice, specifically considering the patient’s role in the decision-making process.

The research proceeded through four distinct, but linked, phases which, together, offered a ‘life story’ of the MCA from legislative intent to current hospice practice (in 2019). The research was informed by relational theory and legal consciousness theory and the methods described are underpinned by a narrative approach to analysis. Phase one was an innovative genealogical analysis of policy and legislative documents (n=24) influencing the ‘coming to be’ of the MCA. In phase two, a systematic review of Court of Protection judgments (n=63) ‘historicises’ the empirical research, which was the focus of phases three and four (group interviews and individual interviews, respectively). Staff from two participating hospices participated in two group interviews and six individual interviews (13 participants), providing empirical data. Template analysis was used in all four phases of the study, and adapted to facilitate a synthesis of the findings across the study as a whole.