Specialist solicitor Ian Cranefield says too many care professionals are taking decisions about vulnerable adults without properly assessing capacity or consulting them – in breach of the Mental Capacity Act’s principles.
In recent months I have found it both depressing and intensely frustrating that some of the fundamental principles of Mental Capacity Act 2005 have had to be explained in detail for many organisations, before a sensible discussion about legal solutions to a problem can commence.
Within the last three months, for example, I have had to deal with:
- A local authority which has seemingly refused or failed to ask a man who appears to retain capacity whether he wishes to see his partner of 12 years or remain in a care home, where he has been placed by his children without his express consent. Many decisions about this gentleman are being made without assessing his capacity, properly consulting with him or exploring his wishes through an independent mental capacity advocate (IMCA).
- Local authority social workers responding to allegations of neglect, emotional abuse or undue influence by undertaking casual interviews with the alleged victim in the presence of the alleged abuser.
- Care home managers working with the family of a resident to decide arbitrarily who gets to visit the resident in the care home, without recognising that interfering with the resident’s rights and freedoms of social contact (and those of the visitor) must be properly authorised as a deprivation of liberty under the Deprivation of Liberty Safeguards (Dols).
On each of these occasions, I have had to persuade the relevant organisation to seek legal advice about their position – often internal advice from a member of its own legal team – before progress can be made. There has been a consistent pattern in these cases of frontline care or social work professionals making important decisions on behalf of vulnerable people with inadequate information about capacity and without proper regard to the potential legal consequences of what they are doing.
It is true that some of the legal processes connected with mental capacity can be complex – such as applications to the Court of Protection and requests for authorisation under Dols. These cases also throw up significant practical challenges for professionals, such as such as how to care for an incapacitated person when there is fundamental disagreement about what should happen among family members
Nevertheless, the essential legal principles that lie at the heart of the MCA 2005 – the protection and liberation of incapacitated people, proportionate control and decisions being taken in their best interests) are not – in themselves, complex at all.
Some local authorities and care organisations have adopted the principles and practices enthusiastically and consistently, whereas elsewhere there is little sign of this.
The codification of mental incapacity law within the MCA 2005 was universally welcomed as a significant improvement when the Act came into force in late 2007.
Some six years later, however, many believe that it is time to review what has worked well and what has not, to ensure that the fundamental principles of the MCA are effectively applied and some of the most vulnerable people in our society are protected, helped and liberated by its application to their lives.
Ian Cranefield is a litigation solicitor and a consultant with Richard Nelson LLP, Nottingham. He specialises in remedying elder financial abuse, neglect in care and advising on adult safeguarding and mental capacity disputes.
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