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.
Precise wording
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.
Wrongful inference
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 [2010], 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.
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So long as we social workers remember that somebody’s wellbeing might not be supported by taking the safest, “wisest”, more formulaic, more restrictive option – then fine.
I also don’t quite grasp the insistence that the right to make unwise decisions doesn’t come from the Mental Capacity Act. No it doesn’t. But so what? Mention of unwise decisions in the MCA is to prompt professionals to view and assess capacity in a certain way – same with the other principles. Principle 3 says, “Just be sure you aren’t about to assess this person as lacking capacity because of their actual decision itself and the consequences which might ensue!”
The fact that this principle needs to be in there at all is the real story behind the Mental Capacity Act in Social Care.
I never understand why writers don nott just use plain English. It’s not a sign of lower intelligence. In fact, it’s quite the opposite. Anyone can use synonyms, but overuse, or using words that having a double meaning can make the writing difficult to read because it changes the flow of the sentence. In my opinion, the use of more complex language unnecessarily actually makes the sentence lose emphasis as oppose to gaining it.
Otherwise, this is a thought provoking article. The interface between two pieces of legislation is always fascinating because people will always interpret them differently. This is why we have to rely on case law.
Do the authors of this article have evidence that “many social workers to believe wrongly that the Mental Capacity Act provides a right to make unwise decisions…”. If they have; they should publish a clear and checkable link to it. I have never met a social worker (or other professional) who believes that the MCA gives an absolute, irrebuttable or unequivocal right to make bad decisions. In the absence of such evidence, this seems to be a bit of a straw man.
The issue is not so much about capacity as even without capacity, decisions may still need to be taken on whether to allow a person to follow a course of action that their words of action suggest they propose to take.
Most professionals will understand that wise or unwise is not a binary choice. It is about the degree of unwisdom and its likely consequences. Many people with capacity (or temporally impaired capacity at the weekend) make unwise choices and are not prevented from doing so. If however someone is going to do something that puts themselves (or others) at serious risk; that may justify intervention to prevent such behaviour. The extent of such unwisdom may determine that court (or local DoLS/LPS) intervention is required.
The MCA Code of Practice and SCIE guidance seem to me to reflect a degree of subtlety that most professionals have no difficulty grasping.
More Questions than answers in this article. Does it say ” a person’s still holds capacity even if unwise decisions are made” or does it say ” if person lack capacity it may make unwise decisions” or is it saying ” A person who make unwise decision does not have capacity” or what is it really saying???
Without wishing to sound ‘trollish’ here, I do wish that people who criticise other people’s attempts to explain legalise would consider their own usage of words, e.g. ‘must’ [be frustrated] ‘if possible’…
I also feel that it would have been better for the authors to have just concentrated on what seems to me to be their main point, really – that people undertaking capacity assessments understand that they do not have to subequently agree with, or in any way assist someone to carry out any ‘unwise’ decisions that they may make after the person has clearly evidenced capacity to make a decision, via the stage 1 and stage 2 tests.
I felt that the attempts to link it with aspects of the Care Act only serve to ‘muddy the waters’ on the main point of the article. This is because of all the contradictory ‘provided’s and ‘musts’ in different sections within the Care Act, e.g. with reference to meeting the costs and charging criteria and the requirements to carry out assessments for (the relevant s.11) people who refuse to provide information to enable assessments to be fully completed. On top of that, Mumby’s reminder that LA’s have no powers to force anything onto people is thrown into the mix. The Care Act contradictions on duties and Mumby’s reminder about the lack of LA powers would provide a really good subject for unpicking, totally separately from the unwise decision consideration.
It does sound a bit trollish. 🙂
I don’t think it sounds trollish – it’s a polite and well made point.
I think that there is validity in the writer’s assumption that, ‘people have the right to make unwise decisions’ has somewhat made its way into the language of professional practice, and as such, it is very useful to be reminded that we should be more accurately considering that the MCA states that a person must not be deemed to lack capacity simply because they make a decision that appears unwise to others.
However, when we consider that we should ‘frustrate’ an individual’s decision to not engage with, decline, or outright refuse a CA assessment, and hold that against the then Lord Justice Munby’s comments that ‘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’, then beyond providing information, support, and encouragement to engage with the process, how are practitioners meant to further ‘frustrate’ the decision of the individual?
Of course, the reality in practice, is that we would then turn to the MCA if the practitioner has any concerns that the individual may lack the mental capacity to make this particular decision at this particular time. Therefore, although the article makes a valid point that the CA and MCA are separate pieces of legislation – and again, I think the point about the specific language used around ‘unwise decisions’ is valid and needs to be addressed – to press that in some way that these pieces of legislation have little or no bearing on one another, or that they should not be considered together, does not, for me, reflect the reality of frontline practice.
Also, in response to Terry’s point raised above, I have to agree that although we are suggesting here that an individual, as per the wording of the MCA, does not have ‘the right to make unwise decisions’, how many countless people not subject to the scrutiny of the MCA are at liberty to make unwise decisions as they see fit? I also think it is a stretch to assume that practitioners will then feel compelled to support individuals to make those unwise decisions – this needs much more detailed context, as, yes, there may well be occasions where a practitioner appropriately supports an individual to make a decision that appears unwise to others, but the inference here is that those decisions in question are extreme, high risk, or even illegal or criminal. As Terry again says, wise and unwise is not binary, rather decisions could be viewed on a spectrum and the granular details about each specific decision has to be understood and carefully considered.
Thank you for the article however, and I hope that my comments can be seen as valuable conversation rather than simply an attack on what has been written here.
It seems that Social Workers unreasonably are also required to have the Legal Skills and knowledge of Law makers.
Law is an entirely different domain to Social Work and often we are simply unable to interpret meaning of legal documents.
The best way to resolve this is to remove Social Workers from Assessments of Mental Capacity and give the work to Consultant Psychiatrists and their teams who have a far better understanding of capacity issues than Social Workers.
Social Workers cannot be expected to become masters of Law. We have been trained as Social Workers not Lawyers. We cannot be expected to know everything.
How can those who practice Social Work do so without a good understanding of relevant legislation? First, as professionals, Social Workers should be accountable for their work (any amount of time in court or tribunals will certainly hone this skill!). Second, how can a Social Worker complete a competent Care Act or Mental Capacity Assessment without knowing what the legislation says? Finally, if, as you suggest, law should be left to lawyers, why would a Psychiatrist (who isn’t a lawyer) be the right person to complete such an assessment?
Legal illiteracy is, in my experience, where wrong decisions are made by professionals in areas such as Care Act assessments, MCA and CHC.
Well made points Gary. If there is any merit in Horse’s argument; it is that SWs do not need to be legal experts. They do however need to have sufficient knowledge of law to do their day-to-day jobs and know when they may need to call upon and ask relevant questions of specialist lawyers – or the courts.
Any suggestion that psychiatrists could do all capacity assessments is based on a fundamental misunderstanding of MHA 2005. A key principle of that Act is that any presumption for an either/or decision on capacity taken by an expert and applicable in all circumstances was ended.
It’s all about flexible assessments for a specific decision at a specific time. SWs (and those with even less legal training) therefore are necessarily required on a regular basis to assess and reassess capacity in their roles as decision-makers.