Ilora Finlay has been given three years to help drive up practice standards in an area of care that’s stumped many practitioners for a decade – the Mental Capacity Act.
Baroness Finlay of Llandaff (to use her full title) is the independent chair of the government’s National Mental Capacity Forum. She is also a crossbench peer, a doctor, professor of medicine at Cardiff University, and a leading palliative care expert.
The forum Finlay leads was set up as the government’s main answer to a House of Lords report that delivered a scathing verdict on Mental Capacity Act (MCA) implementation.
The report, published two years ago this month, found the cultures of paternalism in the NHS and risk-aversion in social care had stopped the MCA from being embedded in practice. The result? The legislation’s “empowering ethos” had not been delivered. Its duties not followed. Its human rights protections not realised.
The Lords’ principal recommendation to remedy the failure was to give responsibility for oversight of MCA implementation to a single independent body. This would, the report said, provide greater accountability and “a focus for enhanced activity”.
Ministers stopped short of accepting that recommendation. Instead they agreed to set up an independently chaired, but government-run, mental capacity forum.
‘Everyone has to take some responsibility’
Finlay started her three-year term as the forum’s chair last September. She says the highly critical nature of the Lords report has helped “kicked the issue up the agenda” in both Whitehall and in services. She acknowledges the forum is not the body the Lords report recommended, but insists that’s not necessarily a bad thing.
“The Lords wanted an organisation to take overall charge of the act. A forum with no resources cannot do that. What we can do is have conversations to raise awareness and, actually, I think that’s quite good because it means everyone needs to take some responsibility,” Finlay tells Community Care.
“It means you can’t just wait for the government to feed lines down. There’s no ‘thou shalt’ in this. You are there, in front of the person, you’ve got to do right by them.”
In her first six months in post Finlay has travelled across England and Wales listening to different people’s experiences of the MCA.
Officially, there have been 39 meetings so far but Finlay says she also uses “any opportunity to shove the MCA on the table” in her wider work. She’s spoken to social workers, doctors, nurses and the academics who train them. She’s met professional bodies, care providers and scores of legal representatives. And, most importantly, she’s heard from people and families with experience of the act.
“I want to keep hearing from people who have actually encountered this legislation. I want to listen to those who feel, for one reason or another, that the act hasn’t served them well or that it has served them very well. We need to identify which bits have and haven’t worked,” she says.
Common issues with implementation
The feedback so far has thrown up a series of issues. Finlay is worried the “huge time pressures” on health and social care services means that even when service users have ostensibly been given options about their care, they are too often left without adequate time or support to consider them properly. She’s also concerned professionals haven’t grasped the need to assess “decision-specific” capacity, rather than making blanket judgments that are “all or nothing”.
Another problem, says Finlay, concerns the ten-fold surge of Deprivation of Liberty Safeguards cases triggered by a March 2014 Supreme Court ruling. Social workers have told her they fear in the rush to put in DoLS authorisations to comply with the ruling, care providers or planners are failing to fully consider less restrictive care placements in line with the MCA.
The government, aware of these pressures, has asked the Law Commission to devise a less burdensome replacement for the DoLS that is more in line with the MCA.
The commission’s first draft for a replacement scheme was met with criticism from ministers, who felt it could be “unnecessarily complex” and costly. Final proposals will be delivered to the government by December this year.
Finlay says the DoLS definitely needs rethought but is anxious any reforms avoid the trap of “replacing one bureaucratic process with another”.
“It would be disastrous. It’s already pulling resources away from frontline care and pulling people into filling forms,” she says.
Raising public awareness
A wider challenge identified by the forum is public understanding of the MCA, or lack of it. Beyond those service users and families who have come into contact with the legislation, few know about it, says Finlay. It’s a situation she feels owes a lot to the dense legal language of the act and the impenetrable jargon used every day in health and social care services.
“Knowledge is power. Yet the language of the act is scary and complicated and then each professional discipline has its own language that it uses to justify itself against others,” she says.
“And none of it really takes into account that the average person hasn’t got a clue what any of it actually means for them, even less so if English isn’t their first language.”
The way many staff are being trained on the MCA also doesn’t help, she adds: “I think you learn best by doing. Yet too often we’re just gathering people in a classroom and giving them legalese training on the MCA. It scares them, rather than helping them support people better. I’ve sat in on some of these sessions. They can feel like legal overload.
“Staff end up feeling disempowered. That leads to risk averse practice, which is the worst thing, because people need to be listened to and empowered.”
So how can practice, and awareness of the act, be improved? Finlay says she’s been buoyed by the number of local creative solutions she’s come across already. They’ve varied from low-cost and low-key initiatives to large scale projects being run across local authorities and NHS trusts.
The forum is collecting examples (you can find out more here) and will publish details of the best projects on 15 March – the first ever national Mental Capacity Action day. Social workers across the country have signed up to take part in the event too, with some writing about the difference the act can make and others live tweeting on the day.
Finlay hopes the event will help boost awareness of the MCA among both professionals and the public. She also hopes it will help services share good practice that is too often hidden from view (partly, she says, because the media is only interested in reporting “horror stories”). She sees the action day as a first step, but an important one.
After the March event, Finlay and her forum colleagues will look at how to build on it. She wants the forum to help these good practice projects to become “the norm” rather than the exception. She also wants to start focusing on some of the fundamental barriers that are preventing the potential of the act being realised.
She’s open about the scale of the challenge. The forum, in a dilemma familiar to many in social care, is trying to deliver change with minimal resources (it has access to a couple of support staff from the Ministry of Justice and Department of Health). However, Finlay says she’s totally committed to the project, particularly having seen the difference supported decision-making made to a relative who was in hospital.
“Why did I take on this role? I get worried about people who are vulnerable. I keep hearing about people talking about capacity as if it’s all or nothing. I keep hearing about bad decision-making,” she says.
“And I think if you’re here you may as well do something with your life to improve things. Otherwise what’s the point of being here? You might as well use your time. You want to leave the world a slightly better place even if it sometimes feels like an uphill struggle.”