‘The Mental Capacity Act has brought about dramatic changes’

On the tenth anniversary of the legislation coming into force, Baroness Ilora Finlay, chair of the National Mental Capacity Forum, reflects on its impact

Mental Capacity Act
Photo: Gary Brigden

By Baroness Ilora Finlay, chair of the National Mental Capacity Forum

When the Mental Capacity Act was introduced 10 years ago, it aimed to empower decision-making and ensure the person, ‘P’, was always at the centre of decisions.

The changes that the act has brought about are dramatic. The five principles of the MCA make it clear that P’s capacity for a decision should be presumed unless it can be shown that capacity is impaired, that P may need support to make a decision and that people are allowed to make unwise decisions.

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

When it comes to best interests decisions, everything must be done to establish what P’s views would have probably been and the decision must be in P’s best interests and not in the interests of any other persons or the state. Where any restriction of liberty may be involved, the least restrictive option should be sought.

It is now widely understood that the legislation is decision and situation specific; a blanket label of ‘impaired capacity’ cannot be applied because people often have fluctuating capacity. The amount of capacity depends on the seriousness of the decision – the more critical the decision, the greater the mental capacity required.

 ‘No blanket labels’

As more and more people take out a lasting power of attorney (LPA), both for finance decisions and for health and social care decisions, staff across all sectors are also becoming familiar with the concept of an LPA.

In the world of banks and building societies, equity release and insurance schemes, a great deal of training of frontline staff has happened to make sure they are aware of what an LPA means and how it can be used. Again, the blanket label of ‘impaired capacity’ has been replaced by an awareness that people can have capacity for some decisions such as what to spend on a day-to-day basis, but may lack capacity for some major complex decisions.

Banking practices have also changed, with some banks doing a home visit to set up financial management systems that suit the individual, when they are unable to get to the branch.

Some people still hesitate over setting up an LPA because they have not understood that the powers handed over only come into play when they wish and when they have lost capacity for the decision that has to be taken. The powers cannot be exercised in an all or nothing way, because the act applies to time and situation specific decisions.

‘Advance decisions’

In the care sector, the concept of an advance statement of wishes has led to advance care plans, in which people state what they probably would want for their future care. Such wishes must be taken into consideration when a best interests decision has to be taken on behalf of P. Advance decisions to refuse treatment have been the area around which there has been most confusion, partly because the language has become muddied by terms such as ‘advance directives’ and ‘living wills’.

Of course, the latter two descriptors are completely inaccurate because you cannot direct somebody to do something to you.  If patients could write an ‘advance directive’ that was legally binding, there would be all kinds of unnecessary and harmful treatments.

Advance decisions to refuse treatment have been very appropriately used over the refusal of cardio-pulmonary resuscitation in the event of cardiac arrest. In some situations a ‘do not attempt cardiopulmonary resuscitation’ or DNACPR order can be written. It does not mean ‘do not resuscitate’ because maintaining fluids or giving a diabetic insulin, are all resuscitating actions that form part of normal care.

It is important that all staff are clear that in the presence of a DNACPR statement or when someone takes the decision to refuse a treatment of any sort, all other care must continue as there is a duty of care towards P.

‘Enormous workload’

The Deprivation of Liberty Safeguards (DoLS), since the Cheshire West judgment, have created an enormous workload, particularly for social workers. For some people, the process around a DoLS application has meant that the care plan is better formulated, but the workload has meant that DoLS processes have detracted from other aspects of care. The extensive consultation by the Law Commission has resulted in new draft proposals*, but they will need legislation and this will take time.

In conclusion, the MCA was landmark legislation; it has brought about many improvements for those with learning difficulties, for those whose injury, illness or treatment has resulted in fluctuating or permanently impaired capacity. It has also clarified the role of those entrusted with making decisions on their behalf so that, when vulnerable, P is better protected, empowered and supported to make his or her own decisions as much as possible.

*If you have strong views about how the benefits of DoLS can be maintained, while the enormous workload is decreased by streamlining and not duplicating assessments, please register on the the National Mental Capacity Forum website and submit a blog.

2 Responses to ‘The Mental Capacity Act has brought about dramatic changes’

  1. Mike Stone October 12, 2017 at 11:48 am #

    A really good piece which I’ve just ‘recommended’ on Twitter. My only slight issue is with the use of ‘duty of care’ – that might be down to the Baroness being concise, and my issue is explained at http://www.bmj.com/content/350/bmj.h2877/rr-7

    I’ve also written about this ‘advance statement’ issue http://www.bmj.com/content/350/bmj.h2877/rr-7

    This is true:

    ‘The powers cannot be exercised in an all or nothing way, because the act applies to time and situation specific decisions’

    It is also ‘extremely complex’ – especially for ‘supporters of Advance Care Planning’!

  2. Mike Stone October 13, 2017 at 12:06 pm #

    Many apologies – it seems I failed to notice that my second URL in my previous reply had failed to copy, so it includes the same URL twice. It should have said:

    I’ve also written about this ‘advance statement’ issue http://www.bmj.com/content/352/bmj.i458/rr-0

    The relevant part of that piece is:

    The ‘mylivingwill’ website pointed at by Isky Gordon (this series of rapid responses, 03 March) tells readers on its homepage ‘My Living Will consists of both an Advance Decision to refuse treatment and an Advance Statement of your preferences and wishes’.

    This ‘mingling’ of an Advance Decision, which is in simple terms a decision already made and recorded by the patient, and which should then be followed by everyone else, with an ‘advance statement’, is entirely unhelpful. The existence of a written ‘advance statement’ after the patient has lost capacity, is nothing like as helpful: these ‘advance statements’ are merely things which must be considered during Mental Capacity Act section 4 ‘best-interests decision-making’, and compared to following an Advance Decision, best-interests decision-making is hugely more complex. And, despite a contemporary ‘fashion’ for the creation during clinical contact with mentally-capable patients of ‘written advance statements’, that idea is not really present in the MCA. The MCA tells anybody faced with making a best-interests decision to consider ‘any relevant written statement made by him when he had capacity’. So, if you first come into contact with a patient only after the patient lacks capacity, you might find something previously written which qualifies as ‘a relevant written statement dating from when the patient had capacity’: that is not a justification to over-promote the deliberate creation of ‘advance statements’ during situations of ongoing care.

    The complexity, is inside ‘the considering’: clinicians and care staff should be stressing the option that patients can create advance decisions and thereby ‘reclaim the decision-making’, instead of encouraging patients to record ‘preferences’ [unless we are talking in terms of ‘acceptance of treatment’, which is outside the scope of an advance decision].

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