The Mental Capacity Act 10 years on: ‘It is still misapplied and used against people’

But the legislation has made social work with adults more relevant and made practice more person-centred, writes Ian Burgess

Photo: Gary Brigden

By Ian Burgess, a Mental Capacity Act lead

On the tenth anniversary of the Mental Capacity Act 2005 coming into force, many of us are looking back at some of the negatives and positives of the legislation.

My biggest complaint about the MCA is that it is still misunderstood or misapplied and used against people. For example, consider section 5 and best interests decisions, where a professional does not incur any liability for an act in the same way that he or she would not be liable if the person did have capacity to consent and had consented.

The MCA: 10 years on

Today, the Adults’ Principal Social Worker Network is celebrating the tenth anniversary of the Mental Capacity Act. Join in the conversation on Twitter: #MCA10

Alex Ruck Keene, barrister at 39 Essex Chambers, refers to a ‘Wild West’ approach to section 5. Section 5 of the MCA intentionally does not give us any authority to do something; instead a professional accounting for his or her behaviour can only rely upon it as a defence. Yet Ruck Keene says many professionals behave as though section 5 provides an authority to act.

Worse still, in doing this the professional might be motivated by a desired outcome from the start, followed by the question: ‘does this person have capacity?” In effect, some professionals want the person to not have mental capacity, in order to authorise their decision making, conveniently forgetting about principles 4 and 5 of the MCA, and section 5.

The MCA then is frequently skewed in practice, not to enable the person, but to provide a dubious mechanism for going against the person’s will.

‘Lawful responsibilities’

I daresay retired senior judge, Denzil Lush, perhaps threw the baby out with the bathwater when he would never sign a lasting power of attorney (LPA), because of the risk of abuse, but I welcomed his recent comments on the subject.

While many express concern about vulnerable adults being scammed, in my experience it is more common for financial abuse to happen because of an LPA. For example, siblings fall out and an LPA (usually for property and financial affairs) is created and then used as a weapon against the other family members.

I have also lost count of the number of attorneys who tell me that they have the authority to make large monetary gifts from their relative’s bank account, or that they can sell their parents’ home and divide the proceeds between themselves. We have a nice chat about the law and invariably the attorney says that ‘no one told them that’.

The solutions to this phenomenon surely rest with the Office of the Public Guardian, which should do more to ensure a) the competency of certificate providers in ensuring the donor can make the decision, knows the implications of creating an LPA and is not under any pressure to do so, and b) that the attorney is fully advised of their lawful responsibilities, that they must have the same regard for the MCA as any health and social care professional. Form LP1F says some of this, but we need more safeguards.

‘Easier to challenge’

So much for the negatives, what about the positives of the MCA in the past 10 years?

Social workers in England and Wales now have the legislative framework they need for intervention rather than vague ‘common law doctrine of necessity’, in which decisions were made with no reference at all to the views of the person, nor any agreement on capacity. People were whisked away into care homes with little or no regard for their wishes. It still happens, but now that can be challenged more easily.

Also, I have known people to say they have felt freedom from social services upon finding that they could reclaim their autonomy and decide for themselves what intervention (if any) to accept from us. It is sad that some of my career highlights have been in undoing what some of my predecessors have done to people.

I wonder how many social workers are saying the same about me, undoing the things I did 15 years ago?

Social workers who have been qualified for more than 10 years might also reflect on how much we refer to human rights these days. I qualified in 2001, the year after the Human Rights Act came into force, yet it wasn’t until the MCA in 2007 that I started to referring to it in reports. Human rights were not mentioned at all in three years at university. But article 8 of the HRA is so deeply embedded in the MCA, and now in adults’ social practice, that I can refer to it here and most readers won’t have to go Googling to see what I am talking about.

‘More relevant and person-centred’

I had not wanted to mention the Deprivation of Liberty Safeguards in this piece, but I do think the Supreme Court judgment of March 2014, especially, has raised the bar in terms of the professional standards expected of social work with adults.

When I first qualified, social work with children sometimes seemed like an elite, while adults’ social work was the poor relation. However, the continuing professional development profile of a social worker with adults will now likely include qualifying as a best interests assessor, or having experience in Re: X deprivation of liberty cases or section 21A challenges, or welfare applications in the Court of Protection.

Writing witness statements, instructing lawyers on the local authority’s position, challenging expert witness reports that find incapacity where you enabled the person to make the decision because of your approach and social work skills – all these things have made social work with adults more relevant and our practice more person-centred. And for that we can, in part, thank the Mental Capacity Act.

5 Responses to The Mental Capacity Act 10 years on: ‘It is still misapplied and used against people’

  1. Mrs M. September 28, 2017 at 11:39 am #

    In the MCA under sectioning it states about nearest / closest relative this is unfair as it doesn’t recognise the relative that has the most involvement. For example one parent is older than the other and they only see the individual one hour a week and claims DWP and the young parent who has the individual at home every weekend and spends a lot of money doesn’t have any say in the individual’s care or aware of what their financial state of affairs is as no accounts are shared.

    • Cameron October 5, 2017 at 6:09 pm #

      Your talking about the MHA (Mental Health Act) and you’re exactly right. The law determining who is the NR is outdated, vague, and often unfair. Unmarried fathers are also at a disadvantage as often aren’t even included as being on the list to be considered. The current government is considering reviewing the MHA and hopefully they will redress the problems with determining who is the NR. It should be noted in your case the current NR can delegate the role to you should the current NR wish to do so and you are willing and able to fulfil the role.

    • D Brown October 11, 2017 at 6:47 pm #

      Cameron is right – this is the Mental Health Act rather than the Mental Capacity Act. However, within MHA the AMHP in deciding who is the NR should also consider subsection 4 of s26 which sets out the definition of the NR. Subsection 4 says (in summary) that where a person ordinarily resides with, or is cared for by one or more of his relatives the NR is determined by giving preference to that relative. A key word here is ‘ordinarily’, so there might be some need for careful interpretation of this in a case where the person doesn’t live with either parent full time, but it would seem to be worth considering. As an ASW a number of years ago I used to use s26(4) quite often when working with older people cared for by a younger child (who had often stayed at home or in the locality for that reason) rather than treating the oldest child who visited sporadically as the NR.

  2. Eco Social Worker September 28, 2017 at 3:54 pm #

    The MCA enshrined what was already best practice into law, but it’s frightening to look back and remember how little protection confused people had in the past.

    I remember being instructed by a manager to go and collect a person with Alzheimer’s Disease from his care home and move him to a cheaper one. His family weren’t in agreement, but I was told to do it without telling them. I refused, which helped my conscience, if not my career, but if I hadn’t I doubt I’d have been breaking any laws.

  3. shirley buckley September 29, 2017 at 7:34 am #

    My son MB was in the COP under Mr Justice Charles in September and October 2007. The judgments are in the public domain. He was found to lack capacity in all areas. Ten years later he in in the Court of Protection in Wales, a S21A challenge to DOLS has disappeared, and we have hearings on “capacity” where the LA is challenging an expert witness’s assessment of MB having capacity. The next hearing in in Cardiff on 16 October in an open court under the transparency pilot. Please try to attend. I would like to ask the President of the COP Sir James Munby to attend also, to observe how the transparency pilot works in reality, and how P is treated when he appeaars in court in person.

Leave a Reply