By Dan Baker, Mental Capacity Act 2005 lead for Central Bedfordshire Council
The overarching intention of the Mental Capacity Act 2005 (MCA) was to be:
enabling and supportive of people who lack capacity, not restricting or controlling of their lives” (Department of Constitutional Affairs, 2007).
This encapsulates the true ambition for how the act should be used. It demands empowerment and enablement.
There is a real connection between the MCA 2005 and the Care Act 2014 regarding supported decision-making. The shared duties and themes reinforce the absolute importance of working with all people from the presumption they have mental capacity to make their own decisions and are best placed to do so. Also of fundamental significance are the principles that all people must be provided with the information and support necessary to enable them to participate, and that any decisions affecting them must be built upon their wishes, feelings, beliefs and values to achieve the best outcome for them.
Supported decision-making
| MCA 2005 | Care Act 2014 |
|---|---|
| The second statutory principle of the MCA 2005 demands:‘A person is not to be treated as unable to make a decision unless all practicable steps to help him (or her) to do so have been taken without success’ (MCA 2005, s.1[3]).(AND)
When decisions are needed to be made on an incapacitated person’s behalf the decision-maker must:‘…so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him’ (MCA 2005, s.4 [4]). (INCLUDING) ‘…consider, so far as is reasonably ascertainable— |
Care Act 2014 principle of Wellbeing, places a duty on Local Authorities to promote:‘control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)’ (The Care Act 2014, s1 [2] [d]).(AND)
In exercising their duty to promote Wellbeing local authorities must also have regard to:‘the importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate’ (The Care Act 2014, s1 [3] [e]). (AND) ‘the individual’s views, wishes, feelings and beliefs’ (The Care Act 2014, s1 [3] [b]). (AND) ‘the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being’ (The Care Act 2014, s1 [3] [a]). |
The aim of the MCA, reflected in the Care Act, is not to take decisions away from people but support them to make their own decisions. The primary objective is to ensure that the person remains in the driving seat of their life and discourages others from inappropriately taking over the controls: supported decision-making; not hijacked decision making.
Nevertheless the “prevailing cultures of paternalism and risk-aversion” appear to persist and influence how practitioners consider the MCA: as a means to restrict or control. A renewed respect for individual autonomy and self-determination is needed; where enablement and supported or shared decision-making is seen as the norm for all situations.
The breadth and depth of supported-decision making
| All people, all the time | Promoting and supporting people to plan for their future | During assessment of capacity | During best interests decision-making |
|---|---|---|---|
| All people have a right to receive all practicable help and support to maximize their potential to make their own decisions, seeking to ensure that they can exercise their legal rights and govern their own life. In particular this includes being provided with the right information, support and assistance when it is needed. | The provisions of Lasting Power of Attorney (LPA) and Advanced Decisions can enable the wishes, feelings, beliefs and values of individuals to be carried forward and have legal standing at a time when they lack mental capacity in the related matter. It can be seen as extending individuals’ ability to exercise their rights of choice, control and autonomy beyond incapacity. | Every person undergoing an assessment of their mental capacity should continue to receive whatever practicable help and support required in order to maximise their capacity. Assessors should consider practical steps which might promote the individual’s understanding, retention and weighing/using of information as well as their ability to communicate. The onus is on the person assessing capacity to ensure that all steps have been taken to enable the person. | When a decision is required to be made, on behalf of an incapacitated person, they should be permitted and encouraged to participate in the decision-making process as fully as possible. In particular, any ascertainable past or present wishes, feelings, beliefs and values should directly influence the decisions made. This may require creative thinking in how the decision-maker gathers views and opinions. It will naturally depend upon the needs and circumstances of the individual. |
If we apply the social model of disability to decision-making, a lack of enablement, in any of the above areas, results in a further disabling of the individual. Supported decision-making is about reducing, removing or overcoming barriers that get in the way of people making decisions or choices. Just as people with physical disabilities might require a ramp to access a building, supported decision-making should be seen as the means to enable people with cognitive disabilities to exercise their legal capacity.
Points for practice
In every situation – including the assessment of capacity and best interests decisions – what are the barriers that prevent or limit this person in making their own decision(s) or achieving their own will and preferences? And, how can they be assisted to reduce, remove or overcome them? Think broadly and creatively!
What is required is a change in culture, away from protection being the primary consideration of health and social care professionals, towards creative enablement and supported or shared decision-making.
There are, of course, situations where action is needed in order to protect – but not at any cost. Wherever possible social workers should be aiming to enable each person to make their own judgments. Where this isn’t possible, practitioners should be adhering to section 4 of the act in making any best interests decision, while also trying to make a decision that accords with the ascertainable preferences of the individual concerned, to get closest to the likely decision they would have made themselves if they had mental capacity.
The challenge, going forward, is how we reposition health and social care professionals to be ambassadors of human rights and creative enablers.
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