The RCPsych Article of the Month for July is from BJPsych Advances and is entitled ‘Fluctuating capacity: the concept of micro- and macro-decisions’ by Martin Curtice.

This article is a continuation of my interest in mental health law and in particular trying to translate key or novel legal judgments into readable articles for day-day jobbing clinicians – not only to provide new information or concepts but information that can be put into daily clinical practice. This case for the first time develops a framework, underpinned by the MCA, to use when approaching cases of fluctuating capacity which can often be clinically vexing.

Despite the MCA 2005 having been in place for over 12 years I’m still not convinced it has really embedded itself deeply into routine clinical practice. There are cases regularly emanating from the Court of Protection and I keep an eye on cases that are either interesting with a new or unique selling point or that develop a previous area of known case law e.g. such as a recent judgment clarifying the latest position on people being able to consent to sexual relations (A Local Authority v JB [2020] EWCA Civ 735). I also use my articles to show the evolving world of case law which over time can naturally change. Indeed, with regards to fluctuating capacity, there has already been further case law which builds upon the judgment described in this article!

When I started writing articles many years ago I usually took the view that if one person read the article and took something from it then I’d be happy. In recent years however many journals provide interesting metrics so an author can see how often an article is accessed. I also find it inspiring whereby some journals, such as the APT, show where an article has been accessed or shared on social media from across the world.

The one thing I would encourage readers to do to easily keep up to date with the changing world of mental health law is to sign up for regular informative emails/newsletters from legal sites with very up-to-date articles about the MCA and MHA e.g. www.39essex.com & www.mentalhealthlaw.co.uk.

Another website (www.mentalcapacitylawandpolicy.org.uk) authored by the leading barrister and national authority on the MCA, Alex Ruck Keene, is also a goldmine for MCA case law and includes a recent series of webinars (or ‘shedinars’ as he calls them having been produced in his shed during the pandemic lockdown! – www.mentalcapacitylawandpolicy.org.uk/shedinars/) and podcasts provides fantastic guidance and expert advice on key elements of MCA law. Also, for those who are interested in reading actual judgments in full these can be accessed for free at www.bailii.org. For those with a specific interest in mental health law I would highly recommend considering doing a Masters in Mental Health Law as I did as a two-year distance learning course during my SpR training years. I undertook this degree course as having been s12 approved as an SHO I actually realized how very little I really understood the MHA and a very encouraging SpR programme director suggested I used my research time to do this course for which I was very grateful for such sage advice.

Why I chose this article
This is a very readable paper underpinned by a complex case report, from Dr. Martin Curtice It introduces the readers to the detail of capacity assessment in a manner that is accessible and interesting. It also intertwines the legal proceedings with the concept of micro- and macro-decisions which is likely to be new to readers. Stimulating is the word that springs to mind!

Patricia Casey, Editor-in-Chief, BJPsych Advances

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