The Mental Capacity Act 2005 has been in force for five years, but social workers and other professionals are still failing to apply it in the spirit that it was created. Local authorities are misusing the Act to support risk-averse practice, with some failing to provide practitioners with the training they need to apply the legislation properly.
Problems with the way practitioners were implementing the Act were highlighted in January with the publication of the best interests decisions study, carried out by the Mental Health Foundation and Bristol and Bradford universities. Though this study covered the period 2010-11, my experience is that many of these issues remain. Some of the evidence below might be described as purely anecdotal. But these ‘anecdotes’ are being repeated again and again by so many professionals and carers from so many different settings and areas, that they are beginning to seem very much like facts.
Making decisions on behalf of people who possess capacity
Professionals continue to make best interests decisions on behalf of people who possess capacity to make the decisions for themselves. In some cases, professionals will just presume that the person lacks capacity because they have dementia or a learning disability or simply because they are a vulnerable adult in a difficult situation – contrary to the first three principles of the Mental Capacity Act.
Quite often the need for an assessment of capacity might not even be a consideration. Instead, professionals see a person with needs and risks to their safety and take action they deem necessary to make them safe. Almost 10% of the best interests decisions examined in the Mental Health Foundation study had been made after the person was found to have capacity to take the relevant decision, and this is still happening in practice.
As professionals, our starting point should always be the question, ‘what permission do I have to interfere in this person’s life?’. We cannot provide care and treatment without consent – this is usually our ‘permission’ to interfere. And if the person has capacity, then we cannot interfere without their permission (unless they are of ‘unsound mind’ or pose a risk to others of course). A person has the right to make their own decisions, if they are able to do so.
We cannot just do what we think is best, unless the person is no longer able to make their own decisions safely and there is no one else with the power to make the decision for them. And we cannot say that they are unable to decide for themselves just because they are old or vulnerable or at risk and making unwise decisions. Recognising that vulnerable people have the right to make decisions which may put them at risk if they have the capacity to do so is a challenge for many professionals, as we have traditionally put a lot of weight behind our ‘duty to provide care’ and ‘responsibility to manage risk’. But this is a challenge we must all strive to overcome.
Decisions about accommodation
The Mental Capacity Act, particularly the Deprivation of Liberty Safeguards, is also being misused to justify moving people into care homes, when they and their family want them to remain at home, or to return home after a hospital visit. Recent case law makes clear that councils should be applying to the Court of Protection for authority to remove people from home permanently or prevent a person from returning home against the person or the family’s wishes.
Sometimes these decisions are based around safeguarding issues relating to family members, but these concerns can be slight. I was recently told of a case where an elderly lady was living with her son and the local authority was not happy with the level of care the son was giving. One day when he went out, council staff went round and asked her to go out for a cup of tea with them; they then removed her to a care home, without telling the son. Initially they wouldn’t tell the son where she was and they wouldn’t allow any contact between them. They said it was because of safeguarding concerns, but gave the son no more information on what these might be. They also claimed to be using ‘powers under the Mental Capacity Act’. It was only when the lady repeatedly tried to ‘escape’ from the care home that the home requested authorisation under Dols and the son was informed of her whereabouts via the independent assessors who came to see her under Dols. Contact was re-established and this case is now going to the Court of Protection, but this council never had permission or any legal authority to remove her in the first instance. This approach was heavily criticised by the judge in the ‘A&C’ Dols case. The same was echoed in the ‘Neary’ case.
I am just mentioning one case here, but this same story gets repeated to me time and time again. And it is often professionals involved in these cases who would seek advice from me, feeling powerless to act against what their local authorities have deemed to be right. In some cases, even after these authorities have been advised to go to the Court of Protection, they will still refuse, because of the cost involved and the lack of any repercussions if they don’t take it to court. The Mental Capacity Act is not a tool of confinement. It’s a tool to protect the rights of a very vulnerable group of people. Yet we are using it to do precisely the opposite and no one seems to be held to account when this happens.
Not involving family members in decision-making/not instructing IMCAs
Where a person is assessed as lacking capacity to make a decision, their families are often not being involved. This in effect makes the resulting best interests decision invalid. The Mental Capacity Act’s best interests checklist makes clear that decision-makers should consult and take into account the views of family members and informal carers. This does not mean that their views should determine your decision; but they should be taken into account.
Independent Mental Capacity Advocates (IMCAs) are also not being instructed in cases where they should be used. The Act stipulates that IMCAs must be instructed when decisions need to be made about serious medical treatment or long-term changes in accommodation, and the person has no one else in terms of family or friends who are willing or able to represent their views.
IMCAs could also be appointed when there are disputes between professionals and/or family, where there are safeguarding concerns or simply where the person or their family needs more support in relation to matters such as Dols assessments. The IMCA services are there, but greatly underused. And it is such a valuable resource; we need to use IMCAs more often!
Training, leadership and evidence of effective implementation
Where local authorities have invested in high-quality training, practice is much better; but access to training is variable. Councils – and other relevant organisations – also need to provide visible leadership on the Mental Capacity Act, with someone available for practitioners to go to for support in implementing the Act. And regular audits of practice in relation to the Act are also essential to provide evidence of effective implementation of the Act.
Commissioners and care providers both have a responsibility here. Commissioners need to start asking those from whom they commission care to provide evidence of MCA and Dols compliance and that they are training staff accordingly. And care providers need to ask themselves what they can do to ensure compliance at all levels.
Calling authorities to account
As the Act goes into its sixth year we need to make sure we raise awareness among professionals and public alike to ensure it is properly enforced. I keep hearing that the Mental Capacity Act is unworkable and too difficult to implement or understand. Some say we need to revise the Act completely. But I would argue if we all just started to comply with the basic principles and processes as set out in the Act and follow the spirit of the Act which is intended to protect and empower the person and put them at the centre of all decisions about them, then we would not need to improve it or revise it in any way. It is a good piece of legislation and it is simple to follow. But it demands a change in cultures and traditional thinking and this is what we need to challenge and overcome in the first instance, not just in ‘other professionals’, but also in ourselves.
Elmari Bishop is a consultant social worker and lecturer practitioner for statutory practice, development and training. She works for South Essex Partnership NHS Trust, co-chairs the Eastern Region MCA/Dols Regional Implementation Group and is the College of Social Work’s national spokesperson for MCA and Dols.”