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We reported yesterday on calls to enhance guidance and training for professionals on best interests decision making under the Mental Capacity Act, but I thought it would be worth trying to pull out some of the key lessons from the study in question.

About the research

The research seems pretty solid and is based on an online survey, and telephone and face-to-face interviews with social care, health and legal professionals about best interests decisions they have taken under the Act.
It comes courtesy of charity the Mental Health Foundation, which has done a lot of work on how professionals can apply the Act (for example), and two of the country's major research centres into the two key client groups involved, the Norah Fry learning disability centre at Bristol University and the Bradford Dementia Group.

Though its focus was on best interests decisions, many of the most interesting findings relate to assessments of capacity. (Do see our guide on conducting a capacity assessment, which is based on work by the Mental Health Foundation).

Lack of understanding of MCA

A major finding was that the principles of the Mental Capacity Act were not being adhered to in a significant minority of cases. While people should be presumed to possess capacity, not assumed to lack it on the basis of disability, diagnosis or age, and have the right to make unwise decisions, about one-quarter of best interests decisions followed apparently flawed assessments of capacity related to perceived unwise decisions or to someone's disability, age or diagnosis. Though this finding was based on an online survey - and so may not reflect the complexity of cases - these issues remained when researchers probed deeper through interviews.

Impairments dominating assessments

Researchers found in some cases conclusions were drawn about a person's lack of capacity because of their inability to communicate verbally or respond to the presence of other people.
"In all these cases, it seemed that the impairment did dominate, and that practitioners had some difficulty in adhering to the principle of presumption of capacity," said the report.

Lack of capacity based on lack of 'insight'

An assessment that someone lacked capacity was in some cases based on the finding that they lacked 'insight' into their care needs, particularly in relation to people with dementia. So, for instance, if professionals believed that a person would be better off in a care home and the person disagreed, this apparent lack of insight translated into an assessment of incapacity to decide. But the research points out that 'insight' is not a word mentioned in the Mental Capacity Act code of practice and that lack of insight in this sense does not equate to a lack of capacity. In one striking passage, it says: "Whether a person with dementia accepted a particular course of action recommended by professionals (frequently admission to a care home) influenced whether an assessment of capacity was initially undertaken and, in turn, if a finding of capacity was made."

Making best interests decisions

Some interesting findings on this:

• Best interests decisions in social care were most frequently carried out through a series of multi-disciplinary team meetings. Typical features of successful practice were good chairing and organisational skills, clarity in defining the decision to be made, and an overriding concern for engaging the client at the centre of the process.
• Social care decisions more often related to safeguarding and changes of accommodation, rather than care reviews, direct payments or care planning.
  
• Though best-interests decision makers should consider the person's expressed wishes, feelings and values, the researchers only found a few cases where these had been influential in the decision.
• Outcomes for people were not just based on their best interests but on resources and available services. As a result, for instance, temporary admissions to care homes for people with dementia were often made permanent.

Recommendations

The research makes a number of significant recommendations. Here are a few key ones:-

• Revising the MCA code of practice to clarify the distinction between a lack of capacity, on the one hand, and unwise decisions and lack of 'insight' on the other.
• The code should include case examples that reflect the complexity of the cases experienced by practitioners, as well as examples of successful good practice.
• Pro formas for conducting mental capacity assessments and best interests decisions should also be added to the code.
• Providers should carry out regular audits of compliance with the MCA by staff.
• Care homes should hold weekly reviews of assessments of capacity and best interests decisions.

Hopefully this research should provide a springboard for practice, guidance and training improvements in relation to the MCA. Do have a read.

The ongoing battle over the government's cuts to (or reform of) disability living allowance is reaching crisis point.
Today, as the House of Lords prepares to debate the proposals in the Welfare Reform Bill, 16 charities have written a letter pressing the government to call a halt to the bill and subject its plans to replace DLA with a cheaper personal independence payment to review.
This follows a feverish day yesterday in which the government announced one concession - agreeing to keep the qualifying period for the benefit following the onset of disability at three months, rather than doubling it to six - while also confirming the sheer scale of the change it is proposing. Replacing DLA with PIP would mean that 500,000 fewer working-age adults would be receiving the benefit by 2015-16 than with the status quo.

Meanwhile, the mainstream media, and not just the Guardian, has taken hold of the issue, with a head-to-head on this morning's Today programme between disability minister Maria Miller (left) and reform critic and disability activist Lord Low over the way forward.
The Lords have already shown themselves ready to give the government a bloody nose over disability benefits cuts, inflicting three defeats on its sickness benefit plans last week.

There is also an amendment to the bill today that will seek to achieve what the charities are calling for by ensuring PIP is piloted before being rolled out.

I'm not nearly close enough to the politics to know whether it will succeed, though I understand that Labour and many crossbench peers - the same coalition who inflicted last week's defeats - will back it.

But what exactly are the issues?

The government's chief beef is that it believes many people are claiming DLA wrongly because they have not been reassessed on their eligibility following an initial claim. Some 70% of claimants effectively get DLA for life.

The campaigners - disabled people, charities and others - believe that the government has not proved its case, and that by pursuing its current course, many thousands of people could be robbed of the opportunity to live independently and free of abject poverty. They also claim that this will not serve to help the government reduce its deficit as cutting DLA will shunt costs onto health and social care.

Reassessing people on their eligibility for DLA or PIP seems fine, so long as the assessment itself is robust and fair.

Disabled people's past experience - based on the hated work capability assessment for employment and support allowance - is that the assessment is likely to be anything but. WCA is now subject to annual reviews to ensure that it improves.

So why not pilot the PIP assessment and see whether ministers' case stacks up?
I imagine that view has some sympathy within the DWP, but the Treasury's demand for the promised savings from setting up PIP to be delivered may make it a non-starter.

(On another note, not all disabled people are opposing the government. Former Community Care columnist Simon Stevens has given a dissenting view, in which he claims that campaigners against reform want disabled people to have "rights without responsibilities").

The Care Quality Commission has released the latest 10 reports from its post-Winterbourne View inspections of learning disability hospitals and similar services, and the results are a bit of a mixed bag.
Of the 10, which includes NHS and private sector services, four were fully compliant with the two standards being assessed - safeguarding and the care and welfare of service users - while two had moderate concerns with both (no provider had major concerns with either).
If you work in this area it may be worth taking a look at the inspection reports but the full story from the 150 inspections will be told in an overview report this spring.

Mencap has alerted me to this nice new video of theirs of some people with learning disabilities talking about their aspirations for 2012.
It's all part of the charity's New Year New Me campaign, which is designed to inspire people with learning disabilities to pursue their own ambitions.
The video's participants won a competition to be the faces of the campaign.
They include Chris Sampson, who wants to be able to teach people symbolic language Makaton, Sarah Arsalides, who wants to run beauty and care sessions for her family and friends, and Eleanor Forrester, who is keen to become a journalist and a screenwriter.

One of the good things about Mencap is the way it combines hard-edged, political campaigning (such as its longstanding and vocal concerns about institutional discrimination in the NHS against people with learning disabilities, which came to the fore this week) with softer campaigns that carry the simple message that people with learning disabilities have lives like everyone else.

Deprivation of Liberty Safeguards (Dols) watchers (you know who you are) will be well aware that the number of applications for the safeguards from has been well below expected levels, with large variations between areas.

The implications are that people are being deprived of their liberty in care homes or hospitals without the protection that the Dols bring, and that this problem is particularly acute in certain areas. So how do you turn this situation around?

I was chatting to Dols expert Toby Williamson, of the Mental Health Foundation, the other day, who has a suggestion: the creation of an audit tool for care homes and hospitals to use to test whether residents or patients are being deprived of their liberty.

This would be tested on a sample of people in each area, ideally, so that local authorities and primary care trusts - who assess Dols applications - can gain an understanding of the extent to which people in their area are not being protected by the safeguards.

They can then work with care homes and hospitals to raise awareness of when they need to apply for a safeguard and provide training for staff where necessary.

It would all be done confidentially and without prejudice, so that care homes and hospitals wouldn't feel that this was a stick to beat them with.

It sounds a good plan but Williamson stresses that we need someone to design and implement such a tool. The Mental Health Foundation was considering it but could not source funding to do so.

He suggests that it is not a job for the Department of Health as this could appear heavy-handed. So do we have any other candidates? Maybe it's something for council or NHS bodies - the Association of Directors of Adult Social Services and the NHS Confederation, notably - to do in tandem with care provider organisations such as the English Community Care Association.

One voice that has not been much in evidence in the wake of the Winterbourne View scandal is that of learning disabled people.
Well Change - the campaigning charity led by people with learning disabilities - has now produced an easy read document, What is Safeguarding?, in response to the case.
It is designed to support service users to understand how they should and should not be treated by services but the charity says it is worth practitioners having a read.

This picture of Polly Walker was among the winners of the annual Mencap Snap! film and photography competition to celebrate images of and by people with learning disabilities. Polly said of the picture: "This is me on a chairlift during the 24-hour ski race in Villars. It is a big charity race for Disability Snowsport. I love the photo and I loved doing the race. I have done the race lots of times and it is always great fun."

Here are a few more of the winners. Behind each is a story - of people with learning disabilities doing ordinary and extraordinary things.

"The competition continues to be successful because people with a learning disability are often invisible in our society, but this competition gives them the chance to capture images that reflect their lives, allowing others to gain a greater understanding," said Mencap chief executive Mark Goldring.