By Angela Jenkinson and John Chamberlain
Social workers, along with others who work for adult social services authorities in England, are required to enact the powers and duties of the authority. They therefore need a working understanding of some sections of at least two pieces of primary legislation which are especially relevant to adult social services. These are the Care Act 2014 and the Mental Capacity Act 2005.
These two acts have very different purposes. The Care Act sets out the authority’s powers and duties regarding care and support, with the general duty to promote well-being. The MCA sets out how someone may make lawful decisions for or on behalf of a person who lacks the capacity to do so.
Social workers should be familiar with the precise wordings of the relevant sections of the two pieces of legislation and know that every word in them matters. Well-intentioned guidance which changes the wording to try to make it more accessible can have serious unintended consequences for client outcomes. This article highlights the implications of guidance which changes the wording of the third principle of the MCA. The MCA wording (set out in section 1) is:
The following principles apply for the purposes of this Act… A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”
Two things are important, here. Firstly, the principle applies “for the purposes of this Act.” The MCA is not making a general statement about unwise decisions. Secondly, the word “merely”, in the dictionary sense, means “on its own”. The fact that a decision is unwise is not sufficient to conclude that the person lacks capacity but it may be a relevant consideration to take into account in determining whether a person is unable to make a decision, as set out in section 3(1) of the act.
Change of meaning
The MCA code of practice gives a summary of principle 3 in chapter 2, but unfortunately it changes almost all its words and, in doing so, it changes its meaning. The first sentence of the relevant bullet point in the code is that:
People have the right to make decisions that others might think are unwise.”
The second sentence is far more accurate in stating that: “A person who makes a decision that others think is unwise should not automatically be labelled as lacking the capacity to make a decision.”
MCA guidance for social workers
Social workers can get up to speed with the Mental Capacity Act at this year’s Community Care Live, on 15-16 October in London. Leading barrister Alex Ruck Keene will be delivering a session on the latest MCA case law and the updates to the code of practice. Practitioners who book their place on this session before 30 August can take advantage of our early bird rate.
In addition, trainer and consultant Elmari Bishop will be running a free session on fluctuating capacity, one of over 30 free seminars at this year’s event. Get more information on how you or your staff can register for the event.
But the first sentence is often used as a soundbite and it is an inference and an unwarranted one. The MCA is mainly concerned with people who are unable to make decisions, whether wise or unwise. The MCA is not about the right to make decisions more generally. It tells social workers and others how to recognise when a person lacks capacity and how they may make a decision for the person which will incur no more liability than they would have incurred if the person had capacity and consented. Our right to make whatever decision we wish, provided it is not prohibited or otherwise legally overridden, is not given to us by the MCA but is a fundamental constitutional right.
In setting out to explain and elaborate on principle 3 of the MCA, the code of practice has unintentionally changed its meaning in an important way, which has been repeated in other guidance, too.
For example, the Social Care Institute for Excellence has repeated it with its video on the MCA, Respecting the right to make ‘unwise’ decisions. Also, the Care Act statutory guidance, at paragraph 10.62, exhorts that:“Local authorities must understand that people have the right to make what others might regard as an unwise or unusual decision.”
Such guidance is probably intended to highlight a right of reasonableness to have all seemingly unwise decisions considered carefully before deciding whether they are unwise. The conclusion of the relevant Care Act guidance paragraph supports this: “Sometimes the care and support plan may have unusual aspects; the question to explore is whether it will meet the assessed needs and lead to the desired outcomes.” Of itself, this is sound advice but it is a different point again from the alleged right to make a decision which might seem unwise.
This right is wrongly inferred from the MCA but it is applied to decisions related to care and support taken by individuals who do not lack capacity. Its effect, therefore, is on Care Act decisions, although there is no such right in the Care Act either.
In the example in the Care Act guidance it is applied to care and support planning. The Care Act itself, not the MCA, sets out what legally must be borne in mind in promoting well-being, including in planning care and support.
The words wise and unwise do not appear in the Care Act. It has its own checklist to which local authority decision-makers must have particular regard, set out in section 1(3). Some of the checklist addresses the importance of not dismissing the individual’s judgments but giving them due regard. For example, it includes the importance of beginning with the assumption that the individual is best-placed to judge their well-being.
Impact on social work
Social workers often repeat the belief that individuals have the right to make what others might think are unwise decisions, although perhaps more often it is phrased that individuals have the right to make unwise decisions, and they believe that this right affects the Care Act decisions which they make. Given the guidance, this is entirely understandable.
This belief may have a significant impact on their Care Act decisions. If the right is to have any meaning, then an individual’s right to make a decision must include their right to do what they have decided. It would be an empty right otherwise.
If a social worker is to respect this right, then it would prevent the social worker from frustrating any decision which they think might be unwise. This would include unwise decisions which are detrimental to the individual’s well-being. Depending on what the actual right is thought to be, it may lead the social worker to believe that they must go further and assist the individual to put the decision into effect even though, or even possibly because, they think it is or might be unwise.
What the Care Act actually provides
The right which the Care Act actually affords is for individuals to have their assessed, eligible needs met and their well-being promoted, always provided that the ordinary residence rules and costs and charging criteria are met and apart from such needs as are being met by a carer.
If an adult decides to refuse an assessment, it must nevertheless still be carried out if (for example) adult is experiencing, or is at risk of, abuse or neglect, including self-neglect (section 11 of the Care Act). Whether the adult’s decision to refuse is unwise or not is not a relevant consideration. Their decision to refuse must be frustrated if possible, in the sense that the assessment must be carried out and the adult’s eligible needs must be met, again provided that the ordinary residence rules and costs and charging criteria are met. However, to quote the then Lord Justice Munby in the case of A Local Authority v A and another , a local authority does not have any “power to regulate, control, compel, restrain, confine or coerce” the individual under the Care Act and their human rights must be respected at all times.
Social workers often work with adults at times when the adult is not judging their well-being very well or when their wishes would not promote their well-being. It may be very difficult and complex in some cases for social workers to find ways of meeting an individual’s needs which promote their well-being, as is required by the general duty in section 1 of the Care Act.
The challenge to deliver their actual CA right is made even more difficult if the social worker believes that the MCA accords individuals the right not to have any decisions they make in connection with care and support which the social worker thinks might be unwise frustrated in any way. There is no doubt that the belief in this alleged right has gained a great deal of currency and there is a real danger that it is leaving adults in need of care and support at risk.
Angela Jenkinson and John Chamberlain between them have many years’ experience of working at all levels in both the statutory and voluntary sectors and provide quality assurance of social care through their partnership, AJC Quality Assurance LLP.