How some managers are directing social workers to breach the Mental Capacity Act

Practitioners are having to carry the can for risk-averse decisions by managers in defiance of the MCA, warns Elmari Bishop

Photo: Rex/Darren Greenwood
Photo: Rex/Darren Greenwood

By Elmari Bishop

So much is being written and said about social workers failing to apply the principles of the Mental Capacity Act 2005. But recently I have been made aware of a number of cases where social workers have tried to apply the principles, only to find that they had no support from their managers. In some cases social workers have even been directed to go against the basic principles of the MCA.

I’ve argued before that social workers are defying the principles of the MCA by opting for safer but more restrictive options such as moving an incapacitated person to a care home as opposed to trying care at home first, in contravention of the least restrictive principle of the MCA. I’ve also often warned social workers against moving a person from home to a care home under the best interests principle when the incapacitated person and/or family is objecting to this, as only the Court of Protection can authorise these decisions in the light of such objections and conflict.

Managers pushing for restrictive care options

More recently I have become more involved in a few of these cases and, on speaking to the social workers concerned, I’ve found that they might be fully aware that they are defying the principles of the MCA. However, they are being instructed by their managers to opt for the more restrictive options without fully considering what would truly be in the person’s best interests. These managers view a move to a care home as a decision that would minimise (if not completely eliminate) risk; it would, of course, also be cheaper than 24-hour care at home. Low-risk and low-cost options are clearly in the best interests of the organisation, but managers are telling social workers to push for these options ‘in the best interests of the person’.

One social worker told me his manager forced him to abandon a 24-hour care package at home just days before it was due to be implemented. The social worker told the manager that a move to a care home would be against the person and the family’s wishes;

The manager said that if the person was assessed as lacking capacity, they could just override their wishes”

that it was in the person’s best interests to stay at home; and that it would also be the least restrictive option, in line with the principles of the MCA. The manager responded by saying that it would be cheaper for the person to go to a care home and that if the person has been assessed as lacking capacity, then they could ‘just override the person and their family’s wishes by using the best interests principle’ to authorise the move to the care home.

How best interests decision-making should work

I advised this social worker that this was not how best interests decisions worked. I explained how important it was to have the person, their family and their wishes and the least restrictive options at the centre of any such decisions. And I also made him aware that if you wanted to move an incapacitated person from their home against their and their family’s wishes then you needed to seek authorisation from the Court of Protection. The social worker seemed relieved as he also believed that what they were doing was against the principles of the MCA and he was eager to take this information back to his manager. A week later I was told by the family that there was a new social worker appointed to the case, who was once again pushing for a move to a care home, telling them that they have authority do this under section 4 of the MCA (the best interests principle).

The manager would want what is safest and cheapest while the social worker was truly looking at the person”

I have heard before of social workers who have been ‘removed’ from cases because they didn’t agree with their managers about what would be best interests of an incapacitated person. The manager would want what is safest and cheapest while the social worker was truly looking at the person, their wishes and the least restrictive options. And if the social worker refused to change their mind then the manager would just allocate the case to another worker who would facilitate the safer and cheaper options in ‘the person’s best interests’. But these were always just stories, almost urban legends, that I would hear second-hand. The case above was the first where I have actually experienced this happening first-hand and it worries me to know that this is happening in practice.

We all know what pressures social workers are under. They have to follow the law, manage risk, enable and empower and take so many things into account when making difficult decisions for very vulnerable people. And they are of course held to account for these decisions. The MCA provides a framework for making best interests decisions and it provides protection for the decision-maker, provided that they have followed the principles and processes of the MCA.

Social workers’ – not their managers’ – heads are on the block

So if a social worker makes a ‘best interests decision’ around something like a change of accommodation without taking the person’s views and wishes into account or considering least restrictive options, then they really have no protection for their decisions. This leaves them, NOT their mangers, in a very difficult position.

If they go a step further and actually remove a person from home against the person and their family’s wishes, without seeking authorisation from the Court of Protection first (even if there are risks or safeguarding concerns involved) then they are acting unlawfully. There are of course emergency situations where you have to act quickly to safeguard life and limb or to prevent significant harm, but the general rule is that if you can go to the Court of Protection, then you really should be doing that first, or if there is no time, then you should follow the action up with an urgent referral to the Court of Protection.

I spoke to another social worker who was in this exact position. She was very concerned about an older person with dementia who was living alone in absolute squalor and in a state of complete self-neglect. She also had serious safeguarding concerns around the family. The social worker was instructed by her manager to remove this person to a place of safety in their best interests, despite the person and the family objecting to such a move. The family sought legal advice after the person was moved and was told that the local authority had no authorisation under the MCA to move the person, and that they should have approached the Court of Protection in the first instance or as soon as possible afterwards. This was never done, despite the social worker involved advising the care home to liaise with the MCA lead regarding a possible deprivation of liberty and application to the Court of Protection.

The social worker was held to account and heavily criticised for the actions that were taken”

The family started legal proceedings against the local authority and, as the social worker was seen as the decision-maker, she was held to account and heavily criticised for the actions that were taken. This had a devastating effect on her as she felt that she was just following direction from her manager and acting lawfully. But no one else viewed it this way.

So much has been said about social workers not following the MCA. But perhaps it is now time to shift our focus to the managers of these social workers and ask:

  • Are they blatantly ignoring the principles and processes of the MCA in favour of the needs of the organisation?
  • Or do they maybe just not understand the MCA, its principles and processes and how it should be applied in practice?

Whatever the case may be, it’s time we called on managers to support social workers to implement the MCA in the spirit that it was intended, which should be line with the best interests of the person, and not the organisation.

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.

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4 Responses to How some managers are directing social workers to breach the Mental Capacity Act

  1. Question? November 19, 2013 at 7:06 am #

    I am a practising social worker. Where I work we do apply the principles of the MCA properly, and I agree that 24 hour support in a persons home is likely to always be the least restrictive option. However, if the LA were to always accommodated this option, then they would not be able to afford to support everyone in need. As a council employee, the social worker may be given conflicting opinions by a manager. When providing a service, they will be expected to consider between is in the the persons best inserts and what service is also In line with the best value principles. The courts must appreciate that Local Authorities don’t have the resources to fund 24 hour care in a persons home at a cost of £1500 a week when it is possible to meet the needs adequately and achieve similar outcomes for £400 a week in a care home, this is simply just unrealistic. I would be interested in your opinion on this.

    • mithran samuel
      mithran samuel November 19, 2013 at 10:10 am #

      Thanks for that. I’ll see if Elmari is able to respond to your question.

  2. Elmari Bishop November 27, 2013 at 4:28 pm #

    “24 Hour care at home will not necessarily be appropriate or in the best interests of everyone who needs care and support, but in the cases mentioned it was in the person’s best interests, it was the least restrictive option and it was what the person and the family wanted. A move to a care home would have been a direct interference with their Article 8 right to private and family life and the person and their family were bitterly objecting to this, which means that such a move could only have been authorised by the Court of Protection. Local authorities or anyone acting on their behalf have no power or authority to interfere in a person’s Article 8 rights where there is objection – this is what case law tells us (see the ‘A&C’ and ‘Neary’ cases) – yet the managers were telling the social workers involved that they could just override this objection by using the best interests principle of the MCA, which is actually unlawful practice and in contravention with the MCA. And this is the point that is being made, not that 24 hour care at home should always be favoured above care in a care home. I hope this clarifies it a bit more? I am fully aware that care homes are cheaper than 24 hour care packages at home, but if you have no legal basis to move the person to a care home (such as when it will involves a breach of their Article 8 rights and there is objection to such a breach), but you are convinced that the person definitely needs that level of care, then you only have two options: 1) a 24 hour care package at home or 2) take it to Court for the to decide.”

    • mithran samuel
      mithran samuel November 27, 2013 at 4:31 pm #

      Thanks so much for replying, Elmari.