Government and directors urged to fill gap in social work practice advice on Mental Capacity Act

Government and adults’ services directors should take a stronger practice lead on the Mental Capacity Act 2005 to fill a gap in advice for social workers on implementing the legislation, say senior practitioners.

The removal of national and regional MCA leads from the Department of Health in 2011 and the lack of practice networks in some regions meant many social workers had nowhere to go for answers to key questions on interpreting the legislation, the House of Lords committee on the MCA has been told.

The concerns were raised last month in evidence to the committee from Lorraine Currie, a social worker and Shropshire council’s commissioner for the MCA and the Deprivation of Liberty Safeguards, Terry Dafter, director of adult social care at Stockport council, and Paul Gantley, the DH’s former MCA implementation manager.

Department of Health MCA leads removed “too soon”

Currie said that Gantley and the regional DH leads were removed from post “too soon. “We have not really had anywhere to look to answer the questions: what is the definitive interpretation of the legislation?; how do you actually want us to act in this situation; is it good to have lots of Dols requests or is it actually bad to have a lot of Dols requests…There is so much data, and yet we are missing that very central direction.”

Gantley told the committee his post and those of the other leads were removed because of “wider decisions about austerity cuts” not because of a judgement that their work was done. He said that they had left a legacy in the shape of local and regional MCA and Dols implementation networks but agreed that a “central focus” had been lost.

“For example, we finished in roughly March 2011, and in February 2011 we issued some guidance around the case law as it was at the time, but there has been no more guidance from central government about case law,” he added. “The resources that come from the centre now are much more around reporting and auditing.” He said practitioners had told him they missed analysis and guidance about applying the Act.

In earlier evidence to the committee, DH senior policy manager on adult safeguarding Claire Crawley said a “significant amount” of government resource went into implementing the MCA over five years. She added that the department was still involved in supporting implementation, for example by commissioning the Social Care Institute for Excellence to develop MCA practice guides and support care homes to apply the legislation.

Good practice in action

Currie said in Shropshire an audit of MCA practice a few years ago had enabled the council to adapt its training for social workers and give them clearer guidance on what was expected of them. She added that in the West Midlands, where she is chair of the Dols leads group, work had been done to share practice and analyse the reasons for variations in Dols caseloads between councils. She said this work could be shared regionally and nationally.

However, Dafter, until recently the joint chair of the Association of Directors of Adult Social Services’ mental health network, admitted practice networks were stronger in some regions than others, and there had been a lack of sharing across regions by Adass.

“The network is strong in the West Midlands, and it is pretty strong in the North West; it is not as strong in some other parts of the country. Adass needs to, and will as a result of this, encourage much more networking and encourage other networks across the country to begin to act and reflect in a similar way.” He said that there was currently a lack of nationally available good practice and that Adass needed to take more of a lead in identifying and sharing this.

CQC’s concerns about local authorities’ Dols practice

In a separate evidence session, the committee heard that the Care Quality Commission had written to a number of local authorities raising concerns about their role as “supervisory bodies” under the Dols. In this capacity, councils must decide whether to authorise applications from care homes or hospitals to deprive a person of their liberty, on the basis of six assessments.

Though the CQC no longer inspects councils’ adults social services functions, it has a role in monitoring implementation of the MCA and Dols, primarily through its regulation of care homes and hospitals.

“Where we have identified that we feel supervisory bodies have not been discharging those responsibilities, we have written to those authorities and asked them to review how they are taking forward those supervisory responsibilities,” said chief executive David Behan. He said that where the CQC had written to councils with concerns, it had conducted further inspections of care homes and hospitals in the relevant area to check whether improvements had been made by the authority concerned.

Last year, the CQC started inviting councils to submit assessments of their work as supervisory bodies to inform the regulator’s monitoring of MCA and Dols practice, obtaining evidence from 13 authorities, just under 10% of the total. In its latest annual report on the MCA and Dols, published in March, the regulator said it wanted to further develop its scrutiny of supervisory bodies but warned this would “depend to a significant extend on the willingness of local authorities to collaborate with CQC”.

The House of Lords committee is conducting an inquiry into the impact of the MCA and Dols, since their implementation in 2007 and 2009 respectively. It held its latest evidence session today, when it heard from Sheila Scott and Nadra Ahmed, the chief executive and chair, respectively, of provider representative body the National Care Association. The committee is due to report early next year.

Improve your MCA and Dols practice

Community Care is holding a conference on implementing the MCA and Dols on 19 March 2014 in London. Book your place now for case law and research analysis, practice advice and the chance to network with your peers.