The government has issued fresh legal advice for social workers on making decisions about whether people should enter residential care when they may lack the capacity to decide for themselves.
The advice, issued in the Department of Health’s annual report on the independent mental capacity advocacy (IMCA) service, concerns the extent to which people facing a change of accommodation should have alternative options presented to them even where they apparently lack the capacity to decide, and the appointment of IMCAs in such cases.
Court of Protection judgement
The DH referred practitioners to a Court of Protection judgement last year - CC v KK – which concerned a woman with dementia, KK, who had been admitted to a nursing home after an assessment had found that she lacked capacity to decide on her care and residence. The home then applied for a Deprivation of Liberty Safeguards authorisation, which was granted but then challenged by KK, who expressed a strong desire to return home. KK had had an IMCA appointed for her as she was facing a change in accommodation and did not have family or friends who could be consulted.
Though subsequent Dols assessments found that she lacked the capacity to decide on her care and residence, the judge in the case, Mr Justice Baker, concluded that she did possess capacity, based on written and oral evidence presented by KK. He had previously ordered that she should be allowed to visit her home daily while continuing to reside in the nursing home, and also concluded that she was not being deprived of her liberty in the home.
In a passage cited by the DH in its IMCA report, the judge criticised the local authority involved for not presenting KK with detailed options for how she could be supported at home to fairly assess whether she had the capacity to choose between this option and remaining in the nursing home. This followed from the first and second principles of the Mental Capacity Act 2005: that capacity should be presumed and people should be supported to make their own decisions.
Detailed options must be presented
The judgement said: “In order to understand the likely consequences of deciding to return home, KK should be given full details of the care package that would or might be available. The choice which KK should be asked to weigh up is not between the nursing home and a return to the bungalow with no or limited support, but rather between staying in the nursing home and a return home with all practicable support.”
The DH said that councils needed to ensure that people facing a move into a care home or the prospect of a return home from residential care were presented with “detailed options”, setting out what a support package at home would entail as part of the capacity assessment. It also said that IMCAs needed to make sure that councils had presented these options to enable the service user to weigh them up.
The judgement also meant that IMCAs should be appointed where the local authority suspects that the person may lack the capacity to decide on their accommodation, not once they have been found to lack capacity. This would be so that the IMCA could support the person to weigh up the options.
The DH said that IMCA services who asked for a written capacity assessment before they worked with a client should cease to do so.
The DH concluded: “This may mean that, on occasion, IMCAs support someone who was thought to lack capacity, but is subsequently found to have capacity to make a decision. This is preferable to IMCAs not supporting someone who is subsequently found to lack capacity.”