‘Risk averse’ and ‘paternalistic’ health and social care practice has prevented the Mental Capacity Act 2005 from achieving its objective of empowering vulnerable adults to take decisions for themselves.
Drawing on written evidence from 206 organisations and 15 oral evidence sessions with policymakers, practitioners and experts, the committee concluded that the monitoring of the Act required a fundamental overhaul to ensure that it was properly implemented.
“A fundamental change of attitudes among professionals is needed in order to move from protection and paternalism to enablement and empowerment,” he said. “Professionals need to be aware of their responsibilities under the Act, just as families need to be aware of their rights under it.”
It found widespread non-compliance among social care and health professionals with the five principles of the Act.
Failure to implement five principles
“Our evidence suggests that capacity is not always assumed when it should be,” said the report. “Capacity assessments are not often carried out; when they are, the quality is often poor. Supported decision-making, and the adjustments required to enable it, are not well embedded. The concept of unwise decision-making faces institutional obstruction due to prevailing cultures of risk-aversion and paternalism.
“Best interests decision-making is often not undertaken in the way set out in the Act; the wishes, thoughts and feelings of [the person] are not routinely prioritised. Instead clinical judgements or resource-led decision-making predominate. The least restrictive option is not routinely or adequately considered.”
The committee’s conclusions were welcomed by Elmari Bishop, consultant social worker and lecturer practitioner for statutory practice, development and training at South Essex Partnership NHS Trust, who gave evidence to the inquiry.
She said that recognising that vulnerable adults were not being empowered by the Act and professionals were failing to implement it was “a huge step forward towards ensuring that the drive to implement the MCA in the manner and spirit that it was intended doesn’t loose momentum”.
The committee found particular problems with the implementation of the first principle, that people should be presumed to possess capacity to take decisions unless they had been assessed as lacking it in particular cases.
Capacity assessment failings
Capacity assessments were either not undertaken when they should have been or conducted poorly, including because practitioners lacked knowledge of the person being assessed or of particular conditions, such as brain injury, Down’s syndrome or autism.
While risk-averse practitioners assumed a lack of capacity on the part of people because of their impairments, the committee also found that social care staff misused presumption of capacity to avoid capacity assessments or providing vulnerable adults with support.
It heard of cases where adults had been left at risk of harm, in some cases leading to death, because people had withdrawn from services, and their decision to disengage had not been sufficiently examined by social workers on the basis of the presumption of capacity.
Compliance ‘rare’ with supported decision-making
Compliance with the second principle – that all practicable steps should be taken to support people to take decisions – was “rare in practice”, found the committee.
It was told that this was down to a lack of resources and time for practitioners to take steps to support decision-making, which was being exacerbated by cuts.
People’s right to make an unwise decision without having their capacity called into question – the third principle – ran counter to the “prevailing culture” of protection in social work. Witnesses said that this culture, plus the fear of media scrutiny, prevented social workers from empowering people to take unwise decisions.
There were also significant problems with the application of the fourth principle, that decisions made on behalf of people who lack capacity to take them should be done in their best interests.
‘Misuse’ of the best interests principle
The committee found that social workers were misusing the best interests principle to justify local authority decisions taken about an individual’s care – such as moving a person with dementia into a care home following a hospital episode. This was often done without consulting the person or their family, and contrary to their wishes, in contravention of the best interests checklist that practitioners must follow when taking such decisions.
Generally, it found a lack of involvement of families in best interests decision-making, while doctors often wrongly interpreted a person’s best interests as equivalent to their clinical judgement, in contravention of the Act.
It also found a lack of clarity as to who was the “decision-maker” in best interests judgements, particularly where a multi-disciplinary team was responsible for a person’s care.
Another issue raised with the committee was that practitioners misused their protection from liability for decisions taken on behalf of people who lack capacity, under sections 5 and 6 of the Act, to assume general authority to make decisions for people.
Tackling the knowledge gap
The government has said it is reviewing the MCA code of practice, which provides guidance to practitioners on implementing the Act. However, the committee said this would be inadequate to tackle the knowledge gap identified in its evidence.
Instead, it said that the Department of Health’s Mental Capacity Act steering group, which is reviewing the code, should look to produce tailored information resources for the different groups affected by the Act, including health and social care practitioners, lawyers, families and service users.
Bishop welcomed the committee’s call for professional regulators and professional bodies to give the MCA a higher profile in training. “This is another encouraging step forward as MCA training is still not compulsory or mandatory in most organisations,” she added.
As well as calling for the scrapping and replacement of the Deprivation of Liberty Safeguards, the committee urged the government to establish an independent monitoring body to be established to oversee the Act, ensure practitioners were properly trained in it and provide support for implementation.
The committee concluded that no single body had ownership or oversight over the Act currently in England, meaning that there was no one to ensure effective implementation. It suggested the new body could be newly constituted or be part of an existing organisation, and could be modelled on the Mental Health Act Commission, the former mental health patient rights watchdog absorbed into the Care Quality Commission in 2009.
The committee also recommended that:-
- the standards that the CQC assesses provides against should include compliance with the MCA as a core requirement;
- the government encourage councils and the NHS commissioners to enforce compliance with the Act through their contracts with providers;
- that local authorities use their discretionary powers to appoint independent mental capacity advocates (IMCAs) more often than they do currently, given evidence about the effectiveness of their role;
- the IMCA role should be further professionalised through national standards of practice and mandatory training;
- the government should provide clearer guidance to local authorities about when to refer cases when they are in dispute about what should happen to a person to the Court of Protection;
- the government should review access to legal aid for people who lack the mental capacity to bring legal challenges to ensure they are not denied access to justice;
- the government should review the offence of ill-treatment or wilful neglect under section 44 of the MCA given evidence that it is too vague, as currently drafted, leading to low levels of prosecution.
The committee said it expected the government to respond to the report within two months.