‘Flawed’ use of Mental Capacity Act key theme in safeguarding adults reviews

The analysis of 27 safeguarding adults reviews found issues with poor capacity assessments and an absence of best interests decision-making

Mental Capacity Act
Photo: Gary Brigden

There are “fundamental flaws” in how the Mental Capacity Act is understood and applied in practice, a report on findings from safeguarding adults reviews (SARs) has concluded.

The analysis of 27 SARs completed by authorities in London found mental capacity was the area of practice where lessons most commonly needed to be learned.

Mental capacity was mentioned in 21 of the 27 reports, the analysis found, and much of the learning was around missing or poorly-performed capacity assessments, an absence of best interests decision-making, and a lack of scepticism and respectful challenge of decisions.

Four of the reviews commented on the difficulties practitioners experienced in reaching a “confident or agreed decision” in a mental capacity assessment, the report said.

Another two mentioned the use of advocacy services as a significant area of learning. In both cases, a referral for an independent advocate was made too late to be effective in supporting the individuals, who had no other source of support to take part in decisions.

There was an “occasional comment” in one case where mental capacity had been well addressed, the report said, but the majority of the evidence pointed to “fundamental flaws” in how the Mental Capacity Act 2005 was being understood and applied in practice.

Other common practice issues included:

  • Inadequate or absent risk assessments, or the failure to recognise escalating risks.
  • A lack of personalised care.
  • A failure to involve carers and recognise their needs.
  • A lack of understanding or curiosity about people’s history and behaviours.
  • A failure to be persistent and flexible when working with people who are reluctant to engage with services, and to take the time to build trust.

‘Lack of resources’

The report was produced by the London branch of the Association of Directors of Adult Social Services, and all the SARs were completed since the Care Act came into force in April 2015.

It also looked at organisational factors that influenced how practitioners worked, which included recording, resources, supervision and support, staffing levels, and legal literacy.

The analysis found 19 of the 27 reviews identified issues with how staff recorded information, or with the recording systems and processes provided by their organisation.

In some cases, records were missing, the report said, and in others too little information had been recorded or it was not up-to-date. This meant that concerns were not always picked up.

In 13 of the 27 cases, a lack of resources had also had an impact. The report pointed to one case where adult social care had refused to fund a care package for a person, even though the current level of support they were receiving was not meeting their needs.

Safeguarding Adults Reviews

Under the Care Act 2014, safeguarding adults boards (SABs) are responsible for safeguarding adults reviews.

A SAB must arrange a review when an adult in its area dies as a result of abuse or neglect, whether known or suspected, and where there is concern that agencies could have worked more effectively to protect the adult.

A review must also be arranged if an adult has not died, but the safeguarding board knows or suspects that the individual experienced serious abuse or neglect.

The statutory guidance states that something can be considered serious abuse or neglect, where, for example, the individual “would have been likely to have died but for an intervention, or has suffered permanent harm or has reduced capacity or quality of life” as a result of the abuse or neglect.

A SAB can also arrange reviews in any other situations involving an adult in its area with care and support needs.

In another case, “the impact of austerity measures” on the care home had limited the opportunities available to a man, which had in turn affected his quality of life.

Almost all the SARs identified concerns about how agencies had worked together.

‘Organisational abuse’

The report also analysed the nature and characteristics of the SARs.

It found that more cases involved men and just under half of the reviews related to people who were living in a group setting, mainly residential care.

It also found that organisational abuse was the most common form of abuse present in the reviews. This is defined by the Care Act statutory guidance as including neglect and poor practice within a care setting, or in relation to care provided within a person’s home.

The second most common form of abuse was self-neglect, which the report said reinforced recent research findings about the complexities and challenges of this aspect of safeguarding.

The report concluded that learning from safeguarding adults reviews is “rarely confined to isolated poor practice on the part of the practitioners involved”. Instead, findings from the 27 reports showed that weaknesses existed in all parts of the system and there are structural, legal, economic and policy challenges that affect staff across all agencies and boroughs.

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10 Responses to ‘Flawed’ use of Mental Capacity Act key theme in safeguarding adults reviews

  1. dianne August 23, 2017 at 12:16 pm #

    The climate is harsh; the care almost non-existent; too many careerists in the system; those who work in social care are also, simply often not up to the job. There is little integrity, and little skill, and hardly any compassion any more.
    Get rid of the lot.

  2. Mark Holloway August 23, 2017 at 2:44 pm #

    For those of us who work in the field of acquired brain injury this is not a surprise at all.

    As the House of Lords report highlighted (for this client group), paternalism and over-involvement by the state is NOT this issue. A lack of involvement by statutory services, walking away from vulnerable and complex people is the issue and it is killing people (see the Somerset Safeguarding Adults SCR regarding the death of “Tom”).

    Individuals with serious impairments to their executive abilities (those which underpin decision-making) and often lacking in insight or ability to apply their knowledge in practice, are routinely not assessed or are assessed by what they say and not what they do. Capacity is a functional act, not verbal output. The act of undertaking a structured assessment of capacity is the very compensation that is required for such individuals to sound capacitous, but only for the duration of the assessment process. Information gained is not triangulated against information from third parties, patterns of behaviour and actions are ignored. The lack of basic understanding of ABI by people who undertake such assessments is astonishing, leads to significant harm and runs against the principles and central tenets of social work.

    • David August 23, 2017 at 9:52 pm #

      I don’t agree that the lack of understanding re ABI is astonishing, given that it is a complex area, especially regarding mental capacity.

      I also am unsure I agree that capacity is a functional act, it is simply the ability to make a decision as described within the MCA test (though i agree there is a functional element to this).

      I do agree that a person with ABI may present as capacitious within a structured assessment in a way that can be misleading. This is where it is complex. I agree that someone can say the right things which is incongruent with behaviour. However, if a person acknowledges the disparity, in that they have some insight, I believe the problem is surmountable. For example clients who agree to plans but fail to stick to them due to impairment in executive ability, and acknowledge this risk, might agree they need support to complete the action. In such a scenario it would in my view be possible to conclude the person has capacity (in terms of that decision at that time-though of course it depends on the totality of the assessment). As always, insight is important. Having said that i have worked with people who have developed insight over time.

      Regarding the mca test of capacity itself i find that the using or weighing of information section is used very differently by different practitioners.

      Best interests is similarly open to interpretation and something that can become a moral and ethical maze if considered and undertaken properly.
      I dont think that is a bad thing, however. It reflects the complexity of attempting to make a decision on behalf of someone else.

  3. Ellie August 23, 2017 at 5:27 pm #

    A very interesting and informative article. Furthermore, I would like to applaud Mark Holloway for his perceptive and well-thought-out response in the comments (above) He raises some very significant points.

    It makes sense that mental capacity assessments are failing and flawed in many cases. A lot of the issues highlighted in the article, as well as those raised by Mark, show that Mental Capacity Legislation and its use are difficult, controversial areas within social work and the NHS. As I have long believed, perhaps the problem is that this legislation was ill-conceived, and rushed too quickly through? There appears to have been no real thought given as to how it would be applied, and would work in practice.

    There are obvious reasons why mental capacity assessments could be flawed. One is raised in the above article – the fact that staff often fail to concur in their assessment of a patient’s capacity. The problem, here, is that different staff may see a patient at different times. They may also communicate with patients in different ways, and relate differently to patients. All of this can lead to staff forming very different opinions of patient capacity, which are as much based upon their OWN PERSPECTIVES and PERCEPTIONS as they are on the patient’s actual levels of capacity. Furthermore, some staff are better than others – meaning that they may be more thorough in their undertaking of a capacity assessment (lazy, stressed, rushed or incompetent staff may fail to ask appropriate questions, fail to gain background information, etc.), leading to different quality assessments being undertaken. Added to this is the fact that staff from different disciplinary training backgrounds may naturally view patients in different ways, and this may impact upon how they conduct capacity assessments (e.g. a Doctor may not undertake a capacity assessment from the same perspective as a Social Worker).

    Another problem is the simple fact that staff are often pushed for time in an overworked NHS and Social Services. They may feel forced to “rush” assessments because of work-related pressures. They may be criticized by managers or colleagues for “taking too long” to gather the necessary information or to complete the requisite paperwork. A sad fact is that the more thoroughly a worker carries out a capacity assessment, the longer it will take. This can be truly problematic in Hospital Discharge Settings, where so-called “delayed discharges” can result in fines. The pressure to discharge patients quickly from Hospitals may well be leading to rushed and inappropriate capacity assessments, and rushed, inappropriate care packages. This pressure to maintain rapid turnover of Hospital patients is deeply inappropriate, and not in the best interests of care, as it often leads to “revolving door cases”.

    Availability of IMCAs is problematic, with some regions having greater numbers than others. This can place increased demands on IMCAs in areas where there are few, leading to “waiting lists”. As a result, patients may find it hard to secure independent advocacy.

    Other issues, such as those mentioned – lack of funding for care packages, poor recording systems, and suchlike – are very relevant. It should be noted that few are the fault of individual Social Workers. Indeed, this article demonstrates the fact that individual Social Workers are rarely the cause of problems when it comes to SARs – rather, we are looking at wide-reaching systemic failures that include funding issues, resource issues, equipment and reporting issues, training issues, and lack of cohesive working across different disciplines.

  4. The Mother August 23, 2017 at 6:45 pm #

    The most worryng aspect of this is that the MCA and capacity itself is so misunderstood by the very people who are supposed to ensure that it is used effectively. Indeed, abuse of the MCA by those who are supposed to ensure it is used effectively and fairly is th central part of the problem. Instead of ysng it to help people, the MCA and DoLs are used to target, attack, bully and harass people – makng their lives intolerable via unacceptable interference, the removal of human rights and the creation of total fear which prevents people from accessing services and provision. Independent assessors? A nice little earner for those who have failed in the real world!

    • David August 23, 2017 at 11:44 pm #

      If this has been your experience you have the right to challenge. This might be in the form of requesting a second opinion. Making a complaint. Or seeking legal advise (particularly if your experience relates to Dols).

  5. Leanne August 29, 2017 at 12:36 am #

    I carry out a lot of Mental Capacity Assessments as one part of my social work role. Social workers used to be trained to do a specific task, training in all aspects of that task such as legislation, local practice and procedures, so that we could learn to do that task really well. Carrying out that task each day we could become experts. Now we are generalists, constantly required to tackle new tasks we are not properly trained to do.

    The truth is we receive minimal training on many different tasks, and are then sent out to complete pieces of work – such as Mental Capacity Assessments – we are not ready to undertake. Training is haphazard and given when it’s available, not when its applicable, so that for instance, one might train to carry out MCA’s and then not do one for a year. Carry out any research on learning and you will quickly discover this is a very poor way to educate people. Individuals learn best when they can instantly apply their learning. A 6 hour power point lecture from the front of classroom, in the middle of a busy week, filed for a year then dusted off and applied twice in a week, is not a good way to learn how to carry out a complex and delicate piece of legal work like a mental capacity assessment.

    In addition our teams are under manned and overworked, and as a result we are constantly trying to do more tasks, many of them unfamiliar, than is feasible. The way we work keeps changing in order to try to manage crisis erupting because the system is constantly on the verge of a complete breakdown. The merry go round keeps spinning faster and we cant keep up
    When I make mistakes, I don’t do so because I don’t care, I do so because more is required of me that I can give. There are no words to express how much I care about my clients, my role, the quality or otherwise of my work. Perhaps I am not the only one to feel like this – research suggests social workers stay in post for roughly 7 years before leaving the profession for something more manageable. It’s not the individual workers who ‘don’t care’ in my experience.

    A colleague of mine – an excellent social worker of 30 years experience – recently returned to work after a career break to care for her family. After 3 months she told her manager that she had too many urgent, high risk cases (child protection) and didn’t feel she could manage her workload. She was also required to do a lot of paperwork that would not previously have been her responsibility, including complex legal paperwork for international adoptions. She had clear evidence that a number of her very vulnerable children were being placed at risk because she could not give them the time they needed and didn’t have all the training she required to carry out her work. She met with her manager hoping for practical suggestions and perhaps a lightening of her workload, and was advised ‘this is a normal workload nowadays, get on with it or get out’.

    Flogging dying horses won’t fix this problem. The truth is that until more money is put into the system so that social workers can be properly trained and given properly defined and manageable workloads, the kind of difficulties identified in this article will continue, to the detriment of both the clients and the social workers.

    • David August 29, 2017 at 9:54 pm #

      Completely agree with you leanne. This is a systems problem. But with inadequate resources the system will continue to demand the unachievable. Very demoralising.

    • Anon September 6, 2017 at 2:28 pm #

      Dear Leanne,

      You write a heartfelt, well-thought-out, and very pertinent comment. Your words totally sum up how many Social Workers (including myself) have felt, and probably will continue to feel until the toxic issues that are afflicting the Social Work profession (e.g. high staff turnover, lack of funding, lack of resources, low morale, bullying by managers, harassment by the media and general public, inadequate or lacking training…) are fixed.

      NO human being can do something superhuman, but this is what Social Workers are often asked to do. They are made to work long hours, in underfunded departments, with few resources, on a shoestring budget, with far too many cases, and with little support because their colleagues are few in number due to poor staff morale. HOW can anyone believe that people who are STILL prepared to try hard to do a job under such circumstances “don’t care”? Sometimes the problem is that they care too much. Hence “burnout”. I’ll bet there are plenty of Social Workers who, just as I did, ended each day at work asking themselves if they could have done yet more for their clients. Who asked themselves if there were better, more effective or newer services and forms of assistance for clients out there that they simply did not know about because nobody had told them – or, worse, they DID know about, but were unable to use because their bosses argued they were “too expensive”. Social Workers who, like myself, got sick and tired of doling out pathetic “one size fits all Happy Meal”-styled care packages because that is all their Local Authority could afford for clients, and anything else got knocked back because the budget was too small. Social workers who wished to work creatively, putting thought into what they did, but were not permitted to by constraints such as lack of funding, lack of time, lack of training…

      Jeez! I recall starting my second job in Social Work, and not even getting a proper induction. Plus, I had NO desk or computer of my own. I was not given an essential “Fire Safety” lecture on time. I had to wait @ SIX MONTHS for updated computer training (to use a new system that by then I was ALREADY USING). I was not shown around the office, shown new filing systems, etc. AND… this is the WORST part of it, I was asked to do Capacity Assessments BEFORE I had even been given the requisite training. Refusal was NOT an option! THAT was made perfectly clear to me. Stinks? Hell, yeah!

  6. shirley buckley September 3, 2017 at 8:55 am #

    The basic tenent of the MCA CAPACITY MUST ALWAYS BE ASSUMED. All practical help possible must be given to P to make the decision. All decisions are time and decision specific. Lack of capacity must be evidentially proven. This is how it works legally and appropriately.