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Is the Mental Capacity Act fit for purpose? Tell the House of Lords what you think.

older-woman

A House of Lords committee has recently been set up to investigate the impact of the Mental Capacity Act, six years on from its implementation.

It has held two oral evidence sessions so far – with government officials and with legal experts - and social care experts will be quizzed on the topic next Tuesday (2 July).

Many commentators on the Act have argued that such an inquiry is long overdue, given the significance of the legislation for people who need support to make decisions and their families.

Importantly, the peers on the committee want to hear from people using the Act on a day-to-day basis about its impact. It has published 27 questions that it would like answers to. Here are a few of particular interest to social workers.

To what extent have the five principles of the MCA been implemented in frontline practice? What evidence is available to assess this? Is there a satisfactory balance between enablement and protection?

We have run a number of pieces from practitioners questioning whether the principles have been effectively implemented in frontline (social work) practice.

Many of the concerns relate to decisions about the accommodation of people with dementia with practitioners taking the view that they would be safer in a care home than back at home (following a hospital episode, say), and breaching the MCA principles to achieve this outcome.

Practitioners are accused of:

  • assuming a lack of capacity to decide on a care home move (breaching principle 1);
  • not taking the time to provide support to make such a decision (principle 2);
  • seeing a desire to return home as evidence of a lack of capacity to decide (principle 3);
  • not acting in the person’s best interests by failing to take into account their wishes or the views of their families (principle 4);
  • not using the least restrictive intervention (principle 5) – by opting for a care home placement over other options such as an enhanced home care package.

But how widespread are these problems and how far can the existence of them be evidenced/assessed? Do let the Lords know.

Has the Act ushered in the expected, or any, change in the culture of care?

Following on from the above, there is a concern that the MCA has not ushered in enough of a change of culture, away from risk-averse practice and the reliance on the notion of a “duty of care”.

Has the role of the Independent Mental Capacity Advocate (IMCA) succeeded in providing a voice for clients and an additional safeguard against abuse and exploitation for those who have no-one to speak on their behalf?

This is one of a number of questions about IMCAs. The Department of Health’s latest annual review of IMCA services raised a number of concerns, including that use of advocates for adults at risk who may lack capacity to take self-protecting decisions was low and falling. 

Are the safeguards in the Deprivation of Liberty Safeguards (Dols) adequate? Are the processes for authorisation, review and challenge of Dols sufficiently clear?

These are the only two questions about Dols – a subject which could have its own inquiry – but there are significant issues with the Dols process that practitioners will want to raise with the committee, including:

  • General understanding of deprivation of liberty, given the lack of a statutory definition and changing case law;
  • Variable levels of knowledge about the safeguards and when to apply for them among care homes staff;
  • The overly tight timescales facing many best interests assessors in responding to applications to authorise Dols from care homes and hospitals;
  • The lack of an easy route of appeal for service users and carers below the Court of Protection.

Is the role of the Care Quality Commission in inspecting on the MCA standards adequate and appropriate? Should other regulatory bodies, such as health and social care professional regulators, be acting in this area?

The CQC, arguably, monitors the MCA and Dols with one hand tied behind its back because it has no role in inspecting local authorities whose decisions and practice are so crucial. It can only use information submitted voluntarily by councils, alongside information derived from its regulation of care homes, hospitals and other providers, to form a view.

It was this government – in 2010 – that took the decision to cease CQC inspections of councils. Interestingly, Department of Health adult safeguarding lead Claire Crawley was asked by the committee about whether councils were fulfilling their responsibility to have “procedures, training and awareness programmes” in place for staff on the Act? Her answer is telling:

“In terms of hard evidence, could I sit here and say, “I absolutely know that every local authority has appropriate plans and training processes in place”? I could not say that because I have no way of getting that evidence. The regulator of the industry, as it were, the Care Quality Commission, does not monitor local authorities or inspect them any more, so I would not know. My understanding is that they are required to do that, and if they are not, they are not meeting their statutory responsibilities.”

I’ve been a bit remiss about my coverage of this inquiry so far but will try and keep tabs on it from now on. Do have a read of the evidence published to date and try and find time to submit evidence to the committee on how you think the MCA is doing. The government appears reluctant to consider doing anything to revise the MCA or, more importantly, its code of practice, but strong findings from the inquiry may change its mind.

Picture credit: F1 Online/Rex Features

Mithran Samuel

About Mithran Samuel

Mithran Samuel is adults' editor at Community Care.

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