How Mental Capacity Act responsibilities go beyond ‘duty of care’

When it comes to the Mental Capacity Act 2005 (MCA), social care practitioners can be confused by the difference between doing something in an individual’s ‘best interests’ and having a ‘duty of care’. In this article, reproduced with kind permission from the English Community Care Association newsletter, Rachel Griffiths explains the difference.

When professionals are expected to act within a ‘duty of care’, this means that they must do what a reasonable person, with their training and background, can be expected to do. So, for example, an accountant must get their sums right and apply for the right tax-exemptions for their clients, or a surgeon must know how to carry out a certain procedure. In the same way, a care provider is expected to be trustworthy, in accordance with their code of ethics, and apply suitable skills when carrying out care procedures.

Best interest decisions can only be made for individuals who cannot decide matters for themselves at the time a particular decision needs to be taken. So before starting to think about best interests, you need to be certain that an individual doesn’t have the capacity to make this decision.

Mental Capacity Act principles

Professionals have to work within the five principles of the Mental Capacity Act 2005

• Start from the presumption that people have the capacity to make their own decisions, unless there is evidence that they might not be able to;
• Do everything in your power to maximise a person’s capacity: there are lots of ways to do this, including using pictures and suitable language, finding a quiet place at the time of day the person is most alert, or simply allowing the person time to think;
• Remember that just because somebody makes a decision that others might consider unwise, that doesn’t necessarily mean the person lacks capacity;
• If someone does lack capacity to carry out a specific decision, those deciding on behalf of the person must act in their best interests, rather than the best interests of the care provider, or the individual’s family;
• You must always look for the least restrictive option that meets the need – this means choosing the option that restricts the person’s freedoms and rights as little as possible.

Best interests are never simply medical; the whole person has to be considered. The questions in the best interests checklist (right) must be considered, provided there is time, in the search for what is in a person’s best interests.


Best interests checklist

 Is there an advance decision to refuse treatment that prevents the treatment being given, or a lasting power of attorney with the power to make that decision?;

 Find out in advance whether an interpreter is needed to aid communication;

 Might the person regain capacity and, if so, can the decision wait?;

 Take account of the person’s past and present views, culture, religion and attitudes; involve the person in the decision as much as possible;

 Do not make assumptions based on the person’s age, appearance, condition or behaviour – concentrate on the actual person;

 Do not make assumptions based on the person’s age, appearance, condition or behaviour – concentrate on the actual person;

 Consult interested family and friends;

 Look for the least restrictive option that will meet the need.


Best interests

So you will see that this process – working within the five principles, assessing the person’s capacity, then proceeding to best interests decision-making if the person really can’t make this decision – goes far beyond ‘duty of care’. Remember always to record your thinking, and the reasons you think the person does, or doesn’t, have capacity to make this specific decision, and what you have done to maximise their capacity.

Working within this process may sometimes create an uncomfortable situation, when you think a person is planning, with mental capacity, to take a risk that you may consider ‘unwise or eccentric’. Among individuals generally there is a wide range of the types of risks we tolerate. Discuss your concerns with the person, and explain your worries. If the risk seems great, you may also discuss the matter with other involved professionals, such as the commissioners, medical practitioners, and the local safeguarding team.

Capacity assessment

The decision about whether a person has capacity or not is made on the “balance of probabilities” – meaning, is it more likely than not, that the person has/doesn’t have capacity. So, you may want to ask another professional, or advocate, to assess the person’s capacity as well. If they lack capacity, you must make sure that any interference with what they want to do is proportionate to the likelihood of harm to that person, and to how serious that harm would be.

However, you should always test your thinking against the principles, and the best interests checklist. It is your duty of care to work within the MCA, but not necessarily to prevent an individual doing what they want.

Rachel Griffiths is one of Scie’s Mental Capacity Act provider development managers, based at the English Community Care Association

Further information

Scie’s training and consultancy service for the MCA

Scie’s resources on the Mental Capacity Act 

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Quick guide to the Mental Capacity Act

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