In June, the Mental Health Foundation released figures that showed 52% of health and social care professionals were contravening the first principle of the act by assuming clients lacked - rather than possessed - mental capacity before conducting an assessment of their capacity to make a particular decision.
In addition, many were conducting assessments for the wrong reasons. Capacity assessments should only be conducted if people are having difficulty understanding or making decisions, but 38% of professionals were doing them purely because of service users' disability or illness. A further 25% assessed capacity because they thought the person was making a bad choice, contravening another principle of the act.
Act's core principles
However, the core principles of the act are not drastically different from the common law that previously governed mental capacity; they have just been clarified and codified. So, what is going wrong?
"There's a fundamental problem of language," says Tony Zigmond, lead on mental health legislation at the Royal College of Psychiatry and the man who described the act as a masterpiece. "We talk about 'people lacking capacity' but of course very few people just lack capacity; they still retain capacity to do all sorts of things," he explains. Capacity wrongly becomes a feature of a person and is not dealt with on a decision by decision basis as the act intends, he says.
Zigmond believes the situation is not helped by the Mental Health Act 1983, which deals in a much more black and white series of classifications. Under the Mental Health Act you are either detained or not if you need care and treatment to protect you or others from harm. The Mental Capacity Act, by contrast, covers people's capacity to make specific decisions at particular points in time. "There's a major difference between the approach of the two acts; it helps muddy the waters," he laments.
Social workers' skills
Because assessments of capacity can relate to small everyday decisions, such as choosing your lunch, the range of staff involved in capacity assessments is wide, including psychiatrists, social workers and care home staff.
Toby Williamson, head of development and later life at the Mental Health Foundation, says that social workers' value base may make them more suited to making these judgements than their health colleagues. However, he adds: "Mental capacity is often seen as something in the realm of health and psychologists, so social workers may feel less comfortable dealing with it."
Ruth Cartwright, joint manager for England at the British Association of Social Workers, says social workers working alongside health professionals are often pressured into doing assessments with the assumption that a person does not have capacity so that they can be moved to residential care. If families hear medics recommending one particular type of care often they feel that is best for their relative, regardless of what that person may want. "Some social workers can resist that pressure but it isn't easy to do so especially if your manager doesn't support you," says Cartwright.
She adds that the culture of wider society is partly to blame for professionals taking a paternalistic and risk-averse standpoint, leading them to make a presumption of incapacity. "We don't like risk as a society, particularly for older or vulnerable people. We need to change that to make progress," she affirms.
Culture inside the sector also needs to change, but to do that the message must reach senior and junior staff alike. Beverley Dawkins, national officer for profound and multiple learning disabilities at Mencap, warns that those at the bottom rung of the ladder may not get the access to training they need.
Greg Slay, health and social care practice manager at West Sussex Council, who worked on national preparation for the act's introduction, says the problem starts at the top, and from his experience of delivering training he believes senior managers are the most reluctant to get involved. He adds: "When the junior staff go to managers for support the managers don't know about it."
Cultural change to put the issues right will take time - probably years. Cartwright suggests it will require robust and shocking research to uncover large numbers of people being incorrectly assessed and therefore placed in inappropriate care settings to instigate sweeping changes in practice.
In the meantime targeted training is the solution, according to Williamson. He says that tools such as the Mental Health Foundation's assessment of mental capacity audit tool (AMCAT), which uncovered the high levels of professionals breaking the act's principles, can be used by organisations to discover knowledge gaps and deliver specific training to fill them.
It's not clear whether this alone will be sufficient to overcome the multiple barriers to consistent implementation of the act's principles, but with few other solutions readily available it may be the best option for now for managers in council adult services departments and care providers.
What is clear is that providing good assessments is the best way of ensuring that the rights of vulnerable adults, who in some instances may lack capacity to take decisions, are not neglected for another five years.
Assessment of Mental Capacity Audit Tool
Social Care Institute for Excellence guide to Mental Capacity Act
Community Care conference on safeguarding vulnerable adults on 12 October
This article is published in the 5 August 2010 edition of Community Care magazine under the headline To Assess or Not to Assess