Social workers need to work harder to enable service users to make decisions for themselves, says independent mental capacity advocate and consultant Natalie Saunders.
It is now almost five years since the Mental Capacity Act 2005 came into force. Its intended purpose is to empower and protect people who have been deemed to lack the mental capacity to make decisions for themselves. The accompanying code of practice assumes that all those taking some action on behalf of a person will be able to competently assess capacity; however, many social care workers are still not conversant with the practicalities of doing so.
Assumption of capacity
The starting point is the assumption that a person has the mental capacity to make their own decisions, unless it can be proven otherwise. An assessor should encourage participation and do whatever is practical to improve the person’s ability to take part, which can include giving consideration to alternative and augmentative communication methods. However, in reality, many assessments are carried out to substantiate the judgement that capacity is actually lacking, which can have significant consequences for the person, as emphasised below.
Case study: inappropriate placement avoided
A hospital social worker made a referral to the independent mental capacity advocate (IMCA) service for a person identified as having moderate learning disabilities, who was found wandering the street late at night by the police. A perceived inability of the person to verbally communicate or understand commands resulted in admission to hospital, with a view to them being moved into an already identified nursing home. Mental capacity had been deemed as lacking based on the responses from the person to attempted interaction and questions about where the person lived, which consisted of smiles, nods and thumbs-up gestures. IMCA analysis of the health and social care files indicated that the person had a significant hearing impairment and had done so since childhood; however, this was not considered during the capacity assessment.
The IMCA advised that the assessment would need to be done in a manner where the assessor had taken ‘all practicable steps’ to involve the person in the decision-making process, and it was suggested that accessing a hearing amplifier could contribute towards this. After much deliberation, this was agreed and the person immediately became lucid in verbal communication when able to hear the questions posed. They explained that they had lost the front-door key to their newly acquired supported living flat. They were unfamiliar with the area and had walked around for four hours in search of a police station; no support workers were in situ as only six hours of support per week was required for shopping and housework. The outcome was that the person was deemed to have the capacity to make an informed decision about where they wished to reside and they opted to return home. If capacity had not been challenged, it would have resulted in the person residing in an inappropriate long-term placement, unable to communicate and without feasible redress.
Problems with interpreters
In other cases, the use of a third-party interpreter is required to facilitate communication. However, in practice, complications often arise. The assessor is reliant on the interpreter to relay the information in an objective manner and needs to trust that any cultural values are not indirectly imposed upon the person. However, interpreters performing in this context are competent mainly in discourse, although information they relay will often form the judgement about capacity. There is a risk that the judgement about capacity is ordained by an interpreter as opposed to a social care professional. Thus, potential conflicts of interests have occurred between the person and the interpreter, resulting in a reluctance to engage, ‘stonewalling’, mistrust of the social care professional and frustration; ultimately leading to the person being deemed as lacking the mental capacity to make the decision on the ‘balance of probabilities’. Subsequently, a ‘best interest decision’ is made which notes the person as having comorbidities based on the presenting mannerisms; inappropriate placements often transpire as a result.
Based on current practice, capacity assessments are ultimately individual human judgments occurring in a social context. The social care profession as a whole must recognise and fulfil its responsibility in training social care workers to assess capacity and address the importance of evidence based reporting. Much of the current mental capacity training is haphazard, disproportionate and often confusing to even the most experienced practitioner. Mental capacity is much more than impairment alone and training must be targeted, consistent, based on best practice and delivered by those who can address the continuum of practice issues by using a variety of formats.
Social care managers must begin to impart mental capacity as a permanent agenda item in team meetings and individual supervisions. This would allow practice issues and dilemmas to be shared and deliberated, whilst instilling confidence in practitioners to utilise it. Alternatively, consideration could be given to the implementation of a new role of mental capacity assessors in relation to the major decisions where an IMCA may be instructed. Best interest assessors and section 12 doctors perform defined assessment roles under the deprivation of liberty safeguards and it may be time to assign the same calibre of assessor specialism to those affected by the Mental Capacity Act per se.
Natalie Saunders has practiced as an IMCA under the Mental Capacity Act since its implementation, and as a deprivation of liberty safeguards IMCA since 2009. She now provides independent consultancy services in relation to the MCA and Dols.
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