The Mental Capacity Act is about treating people as human beings worthy of respect

In a piece for MCA Action Day, lawyer Alex Ruck Keene argues that the legislation embodies a way of thinking that chimes with our deepest values

March 11, 2016 in Adults, Mental Capacity Act, Your Say

This is one of three articles supplied by the Adult Principal Social Workers Network for National Mental Capacity Act Action Day, on 15 March.

By Alex Ruck Keene

In some ways, the Mental Capacity Act is wrongly named. If we have learned anything since it came into force in 2007, it is that it is not the acts that people carry out in its name that matter, but the thought processes that they have when carrying them out.

The Mental Capacity Act is – above all else – about a way of thinking. It is a way of thinking that should chime with good social work and clinical practice. Indeed, it is a way of thinking that chimes with how most of us, I think, would want to conduct ourselves in relation to anyone with whom we interact.

About MCA Action Day

National Mental Capacity Act Action Day, on 15 March, has been organised by the new National Mental Capacity Forum to raise awareness of the legislation and of good MCA practice.

The day includes an event in London looking at barriers to good MCA implementation, while examples of good practice under the act will be published on the Social Care Institute of Excellence’s MCA Directory.

On Twitter, people are being invited to tweet their thoughts and images on the MCA under the hashtags #mca and #unwisedecision. The Adult Principal Social Workers Network has been encouraging practitioners to post comments and photos illustrating unwise decisions they have made to highlight the importance of respecting the capicitated ‘unwise’ decisions of people receiving support. See a selection of their choices here.
The network has also supplied the following pieces to mark MCA Action Day:
How social workers can resist risk-averse practice and uphold human rights
Social work has the wrong view of risk – to the detriment of learning disabled people

After all, what is a capacity assessment in reality other than an attempt to have a proper conversation with the person – an attempt to get to know them, their value systems and beliefs, and to seek to understand their perspective on the decisions in question? As the decision in the recent C case has shown us, a true conversation with a person with a value system very different to ours may well lead us to conclude that the process by which they have reached their decision makes entire sense within the context of their lives and what is important to them.

What right to intervene?

At that point, what possible right could we have to intervene (save, of course, on the same grounds that we would in relation to anyone else if their actions were going to cause harm to others)?

And, again, what is a best interests assessment but an attempt to carry on that conversation beyond the dividing-line of capacity? We have – because the law requires us to – identified that the person cannot have a conversation with us whose consequences are legally binding upon us (‘yes’ to one medical treatment; ‘no’ to another, for instance). But capacity is not a cliff-edge, as the judgement in Wye Valley NHS Trust v Mr B made clear. There are many – often straightforward – things that can be done to allow us to have a conversation where it is so obvious what the right decision for that person is that there can only be one answer.

In both capacity assessments and best interests decisions, whilst we have to give legal labels to the tasks, what we are doing is doing no more than seeking to treat the person as an individual human being worthy of our respect and our time. One of the many important things that Natinoal Mental Capacity Action day can do is highlight how this is happening up and down the country in a whole range of settings; one of the tasks lying ahead for us is to see how best we can embed this as the norm, and not some strange corner of the law and practice. And if that requires us to stamp our feet to allow those concerned to have the time for the conversations they need, then let us stamp them loudly.

Alex Ruck Keene is a barrister at 39 Essex Chambers who writes, trains and speaks extensively on the Mental Capacity Act. He writes the Mental Capacity Law and Policy blog.