There are “fundamental flaws” in how the Mental Capacity Act is understood and applied in practice, a report on findings from safeguarding adults reviews (SARs) has concluded.
The analysis of 27 SARs completed by authorities in London found mental capacity was the area of practice where lessons most commonly needed to be learned.
Improve your capacity assessments
Leading Court of Protection barrister Alex Ruck Keene will deliver a session on conducting capacity assessments at next month’s Community Care Live London.
Register now for your free place to brush up on the two-stage capacity test, get up to speed with the practice implications of the latest case law means and understand what it means to take all practicable steps to support a person to make a decision.
Mental capacity was mentioned in 21 of the 27 reports, the analysis found, and much of the learning was around missing or poorly-performed capacity assessments, an absence of best interests decision-making, and a lack of scepticism and respectful challenge of decisions.
Four of the reviews commented on the difficulties practitioners experienced in reaching a “confident or agreed decision” in a mental capacity assessment, the report said.
Another two mentioned the use of advocacy services as a significant area of learning. In both cases, a referral for an independent advocate was made too late to be effective in supporting the individuals, who had no other source of support to take part in decisions.
There was an “occasional comment” in one case where mental capacity had been well addressed, the report said, but the majority of the evidence pointed to “fundamental flaws” in how the Mental Capacity Act 2005 was being understood and applied in practice.
Other common practice issues included:
- Inadequate or absent risk assessments, or the failure to recognise escalating risks.
- A lack of personalised care.
- A failure to involve carers and recognise their needs.
- A lack of understanding or curiosity about people’s history and behaviours.
- A failure to be persistent and flexible when working with people who are reluctant to engage with services, and to take the time to build trust.
‘Lack of resources’
The report was produced by the London branch of the Association of Directors of Adult Social Services, and all the SARs were completed since the Care Act came into force in April 2015.
It also looked at organisational factors that influenced how practitioners worked, which included recording, resources, supervision and support, staffing levels, and legal literacy.
The analysis found 19 of the 27 reviews identified issues with how staff recorded information, or with the recording systems and processes provided by their organisation.
In some cases, records were missing, the report said, and in others too little information had been recorded or it was not up-to-date. This meant that concerns were not always picked up.
In 13 of the 27 cases, a lack of resources had also had an impact. The report pointed to one case where adult social care had refused to fund a care package for a person, even though the current level of support they were receiving was not meeting their needs.
Safeguarding Adults Reviews
Under the Care Act 2014, safeguarding adults boards (SABs) are responsible for safeguarding adults reviews.
A SAB must arrange a review when an adult in its area dies as a result of abuse or neglect, whether known or suspected, and where there is concern that agencies could have worked more effectively to protect the adult.
A review must also be arranged if an adult has not died, but the safeguarding board knows or suspects that the individual experienced serious abuse or neglect.
The statutory guidance states that something can be considered serious abuse or neglect, where, for example, the individual “would have been likely to have died but for an intervention, or has suffered permanent harm or has reduced capacity or quality of life” as a result of the abuse or neglect.
A SAB can also arrange reviews in any other situations involving an adult in its area with care and support needs.
In another case, “the impact of austerity measures” on the care home had limited the opportunities available to a man, which had in turn affected his quality of life.
Almost all the SARs identified concerns about how agencies had worked together.
The report also analysed the nature and characteristics of the SARs.
It found that more cases involved men and just under half of the reviews related to people who were living in a group setting, mainly residential care.
It also found that organisational abuse was the most common form of abuse present in the reviews. This is defined by the Care Act statutory guidance as including neglect and poor practice within a care setting, or in relation to care provided within a person’s home.
The second most common form of abuse was self-neglect, which the report said reinforced recent research findings about the complexities and challenges of this aspect of safeguarding.
The report concluded that learning from safeguarding adults reviews is “rarely confined to isolated poor practice on the part of the practitioners involved”. Instead, findings from the 27 reports showed that weaknesses existed in all parts of the system and there are structural, legal, economic and policy challenges that affect staff across all agencies and boroughs.