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.
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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.
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.
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.
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.
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.
The capacity part of MHA is definitely misused, and I believe that in my case abused. However the law as ever is an ass.
I am a bit of unique case, and I apologise for the length of explaining this.
I have been sectioned now several times for attempting suicide in the minds of all authorities, in my eyes I’m trying to euthanise myself, which is not legal and I fully understand that. What I do not understand is the likes of the time before last when I was in the acute psychiatric ward and they know my situation now inside out, but still create a personality disorder so they can manipulate the law to work for them with regards to section three, they know that I have said consistently I want to die and the nurse consultant will even admit I always have capacity, when I had taken an overdose, and I was not on a section but refused to go to the local hospital for treatment,they called the police to the ward to forcibly move me to the hospital. They managed to get the police to do it by telling them that the tablets were affecting my capacity…….I was saying the same thing as I did before and after, yet used lack of capacity to section me. I was not kicking off, making any threats etc. I was laid in bed, just did not want treatment. I am severely disabled, I am also terminally ill with end stage liver disease. The police ended up lifting me from the bed onto the ambulance bed. I did not fight them, but I certainly didn’t help such was my desire to not receive treatment. I let myself remain a dead weight so I was hard to move, I have some sympathy for the officers, I even feel for the nurses – I know them very well now and they know my reasons, it’s the doctor.
So when does ‘an unwise decision doesn’t equal no capacity’ part come in then?
And holding me on a 3 for treatment of a mental health illness, it’s a crock, they simply label me as having emotionally unstable personality is disorder falsely to fulfil the protecting me from myself part of MH law. This makes the whole act conflict with itself. To have to protect someone from themselves that is in turn actually saying treatment no matter what?! It is saying that everyone needs to be saved from an attempt to end their life, so how do professionals apply the unwise isn’t the same as no capacity part?
Much to the horror of my local unit I have now made an advance directive (although try finding anyone from mental or physical health who understands that this is a legally binding document, and if they break it they’re liable to civil and legal prosecution……!). I have even gone to the lengths of getting a capacity form signed and attached to it to provide proof I had capacity at the time of making it, it’s signed and witnessed as I am refusing all treatment that will either save or prolong life including cpr. So I should not encounter the same problem with my future endeavours, I say should not because I know there are some drs who will break them if it’s an obvious ‘suicide’ that’s fine because I will sue and the damages will then be used to go to digitas.
There desperately needs to be euthanasia by choice available in this Country, and in the meantime drs need to stop inflicting more suffering on patients in my predicament.
RMNs have said I do not need to be in hospital, but the drs keep me for extended periods with no leave because they know I’m going to try again and they’ll be blamed in coroners court.
Physical health ddoctorsso either can’t or won’t do anything more to ease my suffering, if I were an animal being kept alive like this the owner would be prosecuted. I could go today and drink myself into oblivion, and then get behind the wheel of a car – it’s illegal but not a mental health problem. I could go and sign to risk losing my life and so on if I chose to have plastic surgery no problem even to the point of disfigurement, I could do a hundred unwise things that would not cause anyone to invoke the mental health act, but I can’t decide enough is enough and euthanise myself because it’s automatically suicide, and precious mental health funds are spent on needless treatment, and mental health law is at the very least being bent.
Sorry I get a bit ranty on the subject, but I feel for the staff who are being forced to do things they don’t want to, police being manipulated, and still suffering in agony every day from my physical health problems because of outdated and misused laws