Title: Whose decision? Preparation for and implementation of the Mental Capacity Act in Statutory and Non-Statutory Services in England and Wales
Authors: Rowan Myron, Sarah Gillespie, Paul Swift and Toby Williamson
The Mental Health Foundation undertook a timely study to explore knowledge of decision making by people who may lack capacity to consent to acts of care and treatment prior to the implementation of the Mental Capacity Act 2005 in England and Wales. The study also explored practitioners’ knowledge of issues surrounding mental capacity, their awareness of the new law and their participation in training in preparation for the Act. The study reports on the findings from 73 questionnaires completed by a range of staff and interviews with 20 service users and six carers. Those interviewed commented on the applicability of the Act to adults using mental health, learning disability or older people’s services.
This study concentrated on exploration of what practitioners thought was meant by capacity and their experiences of assessing capacity when certain decisions are mooted or have to be made. The staff members interviewed were employed in many services and sectors, ranging from acute hospital wards to outreach teams, and from residential care to emergency duty teams. It is not possible to distinguish social care practitioner responses from those of nurses or other professions but the teams and workplaces appear to be those where social workers and social care workers are commonly employed.
In many ways the practitioners’ definitions of capacity reflected the new legal framework. That is, they related mental capacity to the ability to make decisions, rather than some threshold of intellectual ability. Most seemed comfortable with their employers’ definition of capacity.
Not all staff carried out formal written assessments of capacity among service users. Of those who did so, a variety of assessments processes were used, reflecting the very different employment sectors of the respondents. Almost all recorded their assessments in writing and many other people contributed to this process notably family members, carers and other practitioners. The frequency of assessment seemed to relate to whether service users’ condition or capacity varied or fluctuated, and the researchers suggest that this means that staff were rightly not generally assessing capacity by factors such as diagnosis, on its own, but were guided by the need for a specific action or decision.
The responses point to the complexity of assessment and that there are many reasons why staff may need to consider if a person can consent to or refuse something, or make a specific decision. Some staff reported that permanent impairment could mean that a person often had many problems in this area others pointed to the role of capacity assessment as part of other professional interventions, such as care planning. For some, crisis or decisions among individuals prompted an assessment, and this could relate to deterioration in the person’s health or to a change in their situation.
This research took place prior to the implementation of the Mental Capacity Act in 2007. Some staff, but not all, were aware of the changes. Those working in generic services were keen to draw on specialist colleagues for help. The concept of ‘best interests’, which is key to the Act, appeared to be broadly understood and was widely regarded to be a way of empowering people, although its potential for coercion was acknowledged.
This survey suggests that, prior to the Act’s implementation, staff were keen to have training because they recognised the Act would impinge on their work. Much of the practice reported confirmed the tenets of the Act and that practitioners did not seem to regard it as radically new or controversial.
The 20 service users interviewed, across eight sectors, talked about day-to-day decisions as well as life-changing ones. Most felt they had enough involvement in decision-making and were happy with the ways in which they were consulted. A minority expressed some concerns about lack of involvement, that things were not as clear as they should be, or that they were not really listened to.
Not all the service users felt that they could express themselves adequately or that people really understood their points of view. Trust was an important part of feeling that a person’s opinions mattered to the staff member or team, and this seemed to be better for service users when people had longer periods of contact with services or practitioners. Staff who sat down and talked through options were appreciated, as were staff who were practical and calm. Service users also valued practitioners who were caring, friendly and positive. Services needed to be approachable and accessible, outside normal opening times.
The six carers interviewed in this study were family members. They appreciated practitioners who recognised that they had an important role in the lives of service users. None thought that the person they supported had definitely been assessed over the ability to make decisions. The carers interviewed often associated decision making with a lot of anxiety and worry.
Overall, this study concludes that practitioners were eager to learn more about the Mental Capacity Act and considered it relevant to and supportive of their practice. Service users and carers similarly expressed desires for greater knowledge about the working of the Act and decision making more generally.
Between them, staff had a number of different perspectives of mental capacity and assessment and the researchers considered that the new Act might tend to standardise definitions, assessment and practice across settings and sectors. This might help distinguish the step of deciding if a person has capacity from subsequent consideration of what is in the person’s best interests if they are assessed as not being able to make a specific decision at a specific time.
This picture of expectations about the Mental Capacity Act reflects other consultations with service users and carers.1 There is much support for the principles of the Act and potential for existing good practice to be consolidated and poor practice to be challenged. Research into the long-term workings of the Act will establish whether great expectations result in improved outcomes for people using services.2 These might include feelings that they have greater control and choice over decisions in the future but also currently. They also might include greater clarity for carers about their rights to be consulted and act on someone’s behalf. The worry and anxiety experienced by carers is troubling and the Act may be of great help to them in clarifying their roles. The study does not attempt to ask practitioners or people using services and carers about specific changes such as advance decisions or enduring powers of attorney (for details of these see the Department for Constitutional Affairs, website below3). It provides useful detail about the process of assessment that is another element of the Act and Code of Practice.
Helping people who are unable to make some decisions for themselves is a core element of social work activity and is likely to be even more central to practice in the new climate of personalisation. Here care, support and independence are key policy goals but they will require great sensitivity, negotiating skills and communication abilities. The Act provides a framework not just for making decisions but for helping people to make them for themselves. This study should support social workers and social care workers in feeling that they are well equipped to respond to the Act’s provisions but is a reminder that people using services and carers may need to be more consistently involved in decision making and assessments.
Chek list for Practitioners
● Has training on the Mental Capacity Act been taken up and is it reinforced in supervision?
● Are leaflets and booklets readily accessible to service users and carers?
● Where are records of advance decisions and lasting powers of attorney kept – and are details easily accessible?
Check list for Managers
● Have staff been given opportunities to comment on MCA training and to request further skills development if requested?
● Is information readily accessible for staff, on paper and on web sites?
Check list for Staff
● Are leaflets and opportunities given to carers to help in work with carers discussions of decision making and their concerns, if any?
● Are carers able to comment on how the Act is being implemented?
● Are carers able to contribute to local training and other develop mental events?
● Are matters such as making decisions covered in carers’ assessments and in regular reviews?
Check list for Advocates
● After the first flush of enthusiasm over implementation, are there opportunities to keep the MCA and the Code of Practice high up in training and practice development?
● Are there any early lessons that can be addressed at local level?
Jill Manthorpe is professor of social work and director of the Social Care Workforce Research Unit, King’s College London.
● Myron et al, 2008, “Whose Decision? Preparation for and implementation of the Mental Capacity Act in statutory and non-statutory services in England and Wales,” Mental Health Foundation and Foundation for People with Learning Disabilities, 2008, tel: 0207 863 1100, e-mail: firstname.lastname@example.org
1 Manthorpe, J Rapaport and N Stanley, 2008, “Expertise and Experience: People with Experiences of Using Services and Carers’ Views of the Mental Capacity Act 2005” British Journal of Social Work, Advance Access published on February 16, 2008 doi:10.1093/bjsw/bcm154
2 Evidem Programme – if you are working in North London with people with dementia and/or carers, the Evidem Mental Capacity project would like to hear of practitioners’ and managers’ views and experiences around the subject of mental capacity – contact: email@example.com
This article is published in the 26 June issue of Community Care under the title Implementing the Mental Capacity Act