The Mental Capacity Act 2005 (MCA) has five statutory principles that must be followed in all cases where the Act is applied. The MCA code of practice explains this further in the opening paragraph of Chapter 2, describing the principles as “the values that underpin the legal requirements in the Act. It goes on:
“The Act is intended to be enabling and supportive of people who lack capacity, not restricting or controlling of their lives. It aims to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so…”
So when you apply the MCA, in order to make a best interests decision for example, you must apply it in line with the principles, which clearly promote the spirit of enabling and supporting the person for whom you are making the decision. The fifth and last principle of the Mental Capacity Act further supports this aim by stating:
“Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action” [MCA Section 1(6)].
The safest option, not the least restrictive
So why are we not having more regard for the “least restrictive” options? Why are we not “enabling” and “supporting” people to live as independently as possibly? Why do we often see the safest – but most restrictive – options, such as placement in residential care, as the best option?
An older person with dementia is admitted to a general hospital after contracting an infection or having a fall at home. They become medically fit for discharge and the most preferred option is discharge to a care home placement. Why? Because they are deemed to lack capacity to make a decision about where they should live and it is therefore presumed that they just cannot return home.
Research for Alzheimer’s Society’s 2009 report, Counting the cost: caring for people with dementia on hospital wards, found that 60% of people with dementia admitted to hospital were living in their own home before admission, but that just 36% were discharged back home.
But sometimes these people have been living on their own or with family without any support for years. So naturally the “least restrictive” option should be care at home with support. It is only when this has been tried and has failed that you can say this is no longer an option. I agree that in some cases care at home would not be appropriate, because the person has very complex needs that can’t be met at home for example, but even in these cases the option of care at home should be carefully considered and explored from all angles before it is ruled out as a least restrictive option.
Contrast with Mental Health Act
Before a person is detained under the Mental Health Act in hospital, the approved mental health professional (AMHP), who would make the application for detention, has to evidence that they have explored all least restrictive options and give clear reasons why none of these options are appropriate. Care in the community would always be the first consideration and AMHPs would have to ask whether this person can be treated at home with the support of a crisis or home treatment team. If not, why not?
Then the AMHP will consider informal admission and again clearly state why this is not an option. The last resort would be detention under the Mental Health Act, but this can only be used once all the other least restrictive options have been explored and there is clear evidence that these options either have failed or would definitely not be appropriate.
And this is the same process that we need to follow when making best interests decisions for people who are deemed to lack capacity to make decisions for themselves, especially when the decision relates to where the person should live. If the person has been living at home or with family without any support, then surely the next option would be to put support in place at home or with the family. If this doesn’t work, then increase the support. If this has been tried and there is clear evidence that it is not working, then consider the next option, which might be care in a more supported environment, but this doesn’t necessarily need to be a residential home. It could be a warden-assisted flat.
Wide range of alternatives to residential care
Some NHS commissioners are also now granting continuing healthcare funding for care packages at home, so this might be another option. Telecare has furthermore come on in leaps and bounds and so much more can be done to make the home a safer environment. There really are so many options to enable and support people to live independently for so much longer and taking a person from their home should always be the absolute last resort.
It may take a bit more work to plan, co-ordinate, implement and monitor care packages at home and it may carry more risk, but when it comes to making best interests decisions, the MCA doesn’t state that you have to go for the “safest” option; in fact – the MCA places a legal requirement on us to consider the “least restrictive” option. Risk and safety are of course relevant factors to consider, but it shouldn’t drive your best interests decision. If made correctly, the person and their wishes and feelings, their family’s views and the least restrictive options would be at the centre of any best interests decisions.
And which person wouldn’t want to go back to their own home? I have assessed so many people who lack capacity to make informed decisions about where they should live and one thing that has always come through consistently, while they still have some awareness and while they are still able to communicate, is their strong desire to go back home. They may not understand where they are or why they need to be there, but they know where they want to be – HOME SWEET HOME!
It’s time to place the person and their wishes and feelings back at the centre of our decisions. And it is most definitely time to do what is required by law and apply the least restrictive principle in the true spirit of the Mental Capacity Act – to enable and support the person, possibly back at home, rather than to restrict or control the person in a “safe” environment that is not home, and never will be.
Elmari Bishop is consultant social worker and lecturer practitioner for statutory practice, training and development at South Essex Partnership NHS Trust, and College of Social Work spokesperson on the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards.
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