GLPhDProgress #1: Do (In)actions have Consequences? – Questioning accountability in the Mental Capacity Act 2005

[Side note: Happy New Year! I’ve decided I’m going to try to write a blog summarizing my PhD work, and related thinking, every week. Wednesdays are traditionally my day off, so now seems as good a time as any to get going…]

Why do we obey the law?

This is probably one of those jurisprudential questions that verges on the unanswerable, perhaps precisely because there are so many possible answers. And indeed, the question of obedience to the law has been debated extensively among legal philosophers (see, for example, the edited collection of readings on “The Duty to Obey the Law” by Edmonson, 1998). My aim here is not to try to provide an answer to this philosophical question.

But I have been reflecting on what “accountability” means in the context of the Mental Capacity Act 2005: taking as my starting point the perhaps rather simplistic assumption that if a law exists, its impact should be discernible in the consequences of its observance, but also of its transgression. I.e. If you break the law, you should hold a reasonable expectation of personal consequences as a result.

As I have been working through the analysis of my dataset for my current project (a textual ethnography of research ethics application processes for research involving participants who lack the capacity to consent – engaging ss.30-34 MCA 2005), I have noticed how many times I’ve referred to the “responsibilities” of the researcher – their “obligations” and “duties”, under either the law, or other forms of professional or institutional regulatory governance frameworks. And this has led me to question the nature of these responsibilities – particularly, what happens if the researcher fails to meet their legal obligations under the MCA 2005?

It has seemed rather difficult to identify any single, universally applicable answer to this question. But here are some of my findings and thoughts so far:

  • Institutions sometimes refer to the MCA 2005 in their ethics application forms, but they don’t always. When they don’t do this, they direct researchers working with participants who “lack capacity” to NHS research ethics protocols. If they do refer to the law, this may be to inform the researcher (sometimes erroneously) as to what the MCA 2005 “requires”.
  • The MCA 2005 sets out, in general terms, what is “required” of the researcher (although it is necessary to consult secondary legislation, and additional legal and professional guidance documentation for definition and clarification).
  • The MCA 2005 states that research that does not abide by the requirements set out in the Act is “unlawful”. However, it makes no mention of any consequences arising directly from such illegality.
  • I have been unable to find any cases where researchers experienced legal sanctions as a direct result of failure to adhere to the MCA 2005.
  • It seems most likely that consequences of failure to follow the Act may arise indirectly, depending on the type of research undertaken, and what this involves for participants. For example, if research involving the administering of a specific treatment is undertaken involving participants who lack the capacity to consent, and the framework set out in ss.3–34 MCA 2005 are not followed, the research itself is “unlawful”. This means that the treatment administered was given without the required “best interests” process set out elsewhere in the Act, and would therefore constitute assault/battery. It is perhaps harder to think how this may apply to research that is less invasive (e.g. research involving interviewing) – although as the obtaining of “intrusive” personal data via unlawful research may be construed as fraudulent, it is likely that redress may be sought via fraud, or data protection legislation.
  • My analysis of the full legal, ethical, professional, and institutional regulatory frameworks that apply to researchers working with participants who lack the capacity to consent has shown that the majority of “consequences” relating to transgression of the framework set out in the MCA 2005 are to be inferred from institutional/professional regulation mechanisms that indirectly invoke the Act – e.g. Research Governance Codes of Conduct that require researchers to follow any law relating to their proposed research undertakings. As such codes form part of the studentship/employment contracts existing between the researcher and the institution, personal consequences (e.g. dismissal for gross misconduct) are likely to be swift and devastating to the researcher.
  • This last point reinforces, and reminds me of how important it is that I research and understand the Mental Capacity Act 2005 as a socio-cultural structure that exists within a complex matrix of social domains. In this instance, the “reach” of the MCA 2005 is perhaps felt most acutely, not in the Court of Protection, but in the university Human Resources department.

I have also been trying to identify wider consequences of failure to adhere to the MCA 2005. The Act brought with it a new criminal offense – that of “Ill treatment or wilful neglect of a person lacking capacity” (s.44 MCA 2005).

Some case law involving this offense is available here: https://www.39essex.com/case_tag/criminal-offences-ill-treatment-wilful-neglect/

Another case of interest to my own research (that relating to Advance Decisions to Refuse Treatment) is that of Jillian Rushton: a retired nurse who received Clinically Assisted Nutrition and Hydration via a feeding tube following a brain injury, contrary to the provisions of her ADRT – seemingly due to a failure of healthcare professionals/organisations to maintain and communicate her ADRT. The case (NHS Cumbria CCG v Mrs Jillian Rushton (by her Litigation Friend) and Mr Tim Rushton [2018] EWCOP 41) is reported here (https://www.bailii.org/ew/cases/EWCOP/2018/41.html) – though is of limited relevance to the issue of sanction for non-compliance with the Act, because as Mr Justice Hayden made clear in the judgment, he was not asked to consider matters of responsibility for failure to adhere to Mrs Rushton’s ADRT, and did not address this in the judgment.

Lastly, for now, my own ethnographic work in the Court of Protection identifies a consequence for Local Authorities of failure to adhere to an aspect of the MCA 2005 that has widely been interpreted as a bureaucratic burden for LAs – the Deprivation of Liberty Safeguards (DoLS). On more than one occasion, hearings I had planned to attend were vacated at short notice, at the request of a Local Authority that was unprepared for the hearing. However, on one occasion, the LA in question assumed the judge would agree to vacate, and therefore did not attend the hearing. This was not, in fact, the case. The judge had not agreed to the request to vacate, meaning that an (unsurprisingly short and unproductive) hearing took place, with costs being awarded against the Local Authority.

I would like to expand this list of “consequences of non-compliance with the MCA 2005” – by adding themes, and details, and by considering the impact of non-compliance from multiple perspectives.

If you have thoughts or experiences to add, please get in touch!

Book Review: Sword, H. (2017) “Air & Light & Time & Space: How Successful Academics Write” Cambridge, Mass. Harvard University Press

I adore writing … mostly.

I find my “voice” through writing, in a way that’s beautiful, delicious, self-expression … except when it isn’t.

When it’s “right”, it’s pure exhilaration, it’s something approaching orgasmic – erotic, as when “work becomes a conscious decision – a longed-for bed which I enter gratefully, and from which I rise up empowered (Lorde, 1978). It’s pure artistry which I, as a person for whom speech, though mostly achievable, comes with the neurological energy demands of an almost-though-not-quite-fluent second language, value hugely.

When it’s not “right”, however – when my thoughts desert me, when the mists descend and I can’t see the words for the trees, or, more usually, when I feel so pulled in multiple other directions across the expansive terrain of my life that I lack the ability – or, the “air and light and time and space” to immerse myself in the poetry of ideas, and the music of words, it’s torturous, unfulfilling, unforgiving.

And I’d love to be able to increase the “right” – to make it more trainable, more controllable, more malleable – less “wild stallion”, more … not “dressage” exactly, but perhaps the powerful, enthusiastic, harnessed energy of riding across country – reaching your destination, but also enjoying the ride.

The trouble is that I’ve never been good at being “taught” to write. It’s just been something that I “do”, and every time anyone has attempted to teach me, or I’ve searched books for ideas on “how to” train this aspect of me, the end has been hot, angry frustration as I attempt to (or feel pressured into) twisting my reluctant, stubborn brain into the mental gymnastics required for me to think, and work, like someone else.

There is one exception to this that I remember clearly – one of my junior school teachers used to set a weekly writing exercise, whereby he gave out a topic or title on the Monday of each week, and on the Friday morning we had to write a piece based on the topic. This was just delightful – a chance to indulge in playing with words, and making music using the melodies I acquired through voracious reading, and a chance to excel at a personal passion. It was also purely generative, as the odd suggestion over the shoulder led to an improved lexical choice, or a grammatical or syntactical improvement – clearer communication and sharper expression of my ideas. However, with this exception, all other experiences of education on writing have resulted in nothing but frustration, angst, brutality, and a host of murdered darlings.

I had reached the conclusion that my approach to writing is too idiosyncratic, – more (uncontrollable, or at least, uncontrolled) magic than craft – and too sporadic and reliant upon the capricious will of my own mind to be susceptible to aid and structured improvement.

Then recently, I discovered this book.

Helen Sword has produced exactly the guide to academic writing that I needed. And she has done this by not really providing a “guide” at all – but rather an empirical study of the writing habits of academics across disciplines, and around the world.

Taking its title from the poem by Charles Bukowski, the book speaks to the image of a suffering-yet-productive artist, as a model relating to academics, and asserts that there is no point in waiting for a perfect space in which to create – as creativity will emerge in the most trying of physical, personal, and social circumstances (not sure quite what Virginia Woolf would make to this? But then, who’s afraid of Virginia Woolf?).

The central thesis of the book is the development of a “BASE” model, which Sword uses to articulate the tools necessary to build your own personal, virtual “House of Writing”. BASE encompasses the following 4 areas of focus:

B – Behavioural Habits

A – Artisanal Habits

S – Social Habits

E – Emotional Habits

These are explored in their own chapters, by reference to a considerable empirical study on which the book is based (see what I did there?) The empirical work is outlined in detail in the introductory chapter (itself a beautiful meta-model of how to write about methods in a way that is accurate, clear, and engaging). Sword explains how she undertook two forms of data collection, with a view to demonstrating the contrasts between two different, clearly demarcated categories of academic writer – (1) “Exemplary academic writers” chosen by Sword, and interviewed in-depth, and on-the-record, and (2) “Lesser-known academics from underrepresented cultural, ethnic, and gender minorities who have survived, and even thrived, in academe” who had signed up for, and attended Sword’s writing workshops, and were asked to complete an anonymous questionnaire (n = 1223: faculty members, PhD students, postdoctoral researchers, and independent scholars).

Sword explains that she had assumed she’d be able to make authoritative claims based on her data, about the writing habits of successful writers, and how these compared and contrasted with those of less confident writers, who identified themselves as in need of support (and therefore signed up for a writing workshop); as well as being able to draw conclusions about the different writing practices of, for e.g. different genders, different geographical/cultural demographics, different academic disciplines. She quickly found, however, that rather than identifying such patterns in the writing practices of her respondents, she was “struck by the richness of their difference”, in a way that is highlighted acutely in this account:

“The futility of such scholarly typecasting struck me with particular force on the day I interviewed two colleagues who work in the same discipline and had recently been awarded the same prestigious research prize by the professional society to which the both belonged…they matched each other as closely as any other two academics in my interview cohort. Yet their personal affects and attitudes towards writing could hardly be more different. One was self-confident, the other self-effacing; one was earnest, the other ironic; one clearly loved to write but spoke mostly about the agonies of writing, while the other clearly struggled to write but spoke mostly about its pleasures.” (Sword, 2017: 3)

Rather than shoehorn her data into an awkward “how-to” of academic writing practices. Sword therefore presents a wide-ranging discussion on the numerous, often resourceful, sometimes dispirited and stodgy treacle-wading ways in which academics at all levels, in all areas of academe negotiate and engage with the affordances and contingencies of writing within (and often in spite of) academic and personal lives.

I found this book a joy to read. It was so heartening to feel that I wasn’t alone – and that it isn’t only other PhD students, but writers of all levels of experience, at all stages in their careers, who experience many of the same highs and lows that I do, and who deal with their own successes and adversities in a huge range of ways. It was fabulous to have it affirmed that there is not necessarily a black/white, right/wrong dichotomy in writing practice, but rather that writing, as a craft, is best undertaken in whatever seem to be the best ways that suit the circumstances in which the writer finds herself.

At times, I found myself encountering a familiar sensation that some of my own (dis)abilities, and encounters of adversity and oppression (particularly as an autistic, disabled writer) were missing from the accounts in this book: an omission that was particularly noticeable, given the focus built into the book’s methodological approach, on the experiences of writers from other minority groups.  This was disappointing in terms of Sword’s (self-identified) aims of representation of diversity, but it didn’t necessarily impede my engagement with, and enjoyment of the book, because I also got a huge amount from the areas and experiences that were covered. I feel that this is simply an argument for more, pluralistic, discussion of the craft of academic writing – discussion that is rooted in, that takes as its starting point, and that engages analytically with, empirical accounts of practice. Writing is so often portrayed as a mysterious, secretive, veiled practice – or as a “talent” that you either have, or you don’t. This book really lifts the lid on this practice. It won’t provide you with a “House of Writing”, but it will begin to provide you with the tools to find the “air and light and time and space” with which to build your own.

I would recommend this book to anyone who, like me, finds their “voice” through (academic) writing.