In the line-up for the 2007 legislation Grand National we see the return of some old favourites. Waiting for the starters’ orders are the Mental Health Act alongside the NHS & Community Care Act. We also see the return of the Chronically Sick & Disabled Persons Act and … surely not … Yes it is, the National Assistance Act is back for another plod around the course, surely he should have retired by now. We also welcome along one of the favourites this year, in his first year of entry, the Mental Capacity Act is confidently waiting for what must surely be a resounding victory for all those he represents. They’re under starters’ orders, and they’re off …
… but it’s a rather lack-lustre performance from the Mental Capacity Act 2005 (MCA). I’m probably not the only one slightly disappointed by the sluggish start; 5 years into the MCA I have to admit that things probably haven’t gone as some of us may have imagined. I was prompted to write this blog having recalled a recent occasion concerning a gentleman with a learning disability. He asked his carers for support to obtain an application form for a driver’s license and then to complete the form. Instantly, the carers decided that it would be far too dangerous for the gentleman to be driving around and, quoting the MCA, in his ‘best interest’ decided that it would be better if they didn’t support the gentleman to obtain and complete a driver’s license application form. I think the only correct consideration of the MCA were the two words, ‘best interest’ and even they were out of context! On every level, they failed to apply the MCA correctly or even remotely well. If they had, they would have approached the decision from the assumption that the gentleman had capacity (which, interestingly he did) and provided the support he was requesting in the first place.
This of course isn’t an isolated incident and only recently was also reported about on the Community Care website. Poor application of the MCA is widespread, it crosses all levels of care professions and it has to be addressed for the sake of those it should be protecting. If I were the MCA, I would be suffering from a complex right about now. Being misrepresented, misquoted, ignored, it’s enough to make even the strongest legislation question themselves!
Some organisations see the importance of MCA training, but where I often see a glaring hole is in people’s ability to apply the principles and use the MCA as the framework it was intended to be. People can usually quote phrases, provide general themes or even list the 5 principles of the MCA but that is often where knowledge and application stop. Carers and professionals alike should be discussing it daily, in team meetings, formally in supervision and informally. They should be applying it to all decisions being made and actions being undertaken on behalf of someone who may lack capacity. They should be questioning everything and inquisitively discussing whether any action or decision being made is the least restrictive or whether a seemingly unimportant decision made by carers or professionals has just had a significant impact upon individual.
The MCA doesn’t have to be a complex piece of legislation unattainable to anyone who doesn’t have a law degree. It even comes with a very user-friendly Code of Practice to which of course, anyone working with an individual who may lack capacity must have regard for. But it does have to be a piece of legislation that is used well and frequently by all concerned to ensure that we really do act in peoples’ best interest.
Unsafe Spaces 
Well reported Gary.
I have seen repeatedly the MCA misapplied by all using it and many failing, (especially social workers), to heed the decision of someone deemed to have mental capacity, with serious harm to the individual (had a stroke because the actions they took had exactly the emotional consequences that would have been predictable if they had gathered knowledge about the client and the likely impact under the circumstances). The health professionals did not deprive the person of their right having properly assessed mental capacity, (although some nursing staff in particular did not follow the principles of the MCA and caused part of the harm by acting without consent before assessment of capacity for the decisions).
In one case an approved mental health social worker walked into the room, and having been informed by relevant professionals that the client had capacity to make own decisions, shouted at the top of her voice ‘I am acting in your best interests’. No amount of training is going to make a difference because the idea that clients may have rights seems to be discarded and the most vulnerable have no voice to argue (unless they have friends / family who can see what is going wrong and often these are sidelined in power struggles).
The MCA is being used so badly that we should all fear for loss of capacity because we will be treated as having no rights to self determination of our often long lived lives. In 2009 the Mental Health Foundation researched this and the picture has not it seems changed. The MCA needs to be scrapped in my personal view, as it is being used in contravention of Human Rights and Equality legislation in Europe.
I recall the Officer-in-Charge of an Old Peoples’ Home in Oxford a number of years ago who refused to allow her residents to go and vote unless they promised to vote Labour…
Scrapping the act can’t be the answer. I guess it could be scrapped and immediately replaced, but wouldn’t that simply put us back to square 1 – people misunderstanding the new act rather than the old one and illegal/wrong decisions being taken in “best interests” all the time.
I think the problem with the MCA is firstly a simple lack of understanding and secondly an unfortunate inability by those in positions of power to adapt to and adopt current ideas of personalisation and individual choice. Until practitioners get it into their heads that the service user is the boss of their own life, with the practitioner as an aid and not as a ruler, it doesn’t matter what a piece of law says, people will still do the wrong thing. The act needs to be reinforced, reiterated and ultimately drummed into people until they understand the implications of the choices they make for others.
Well you might take note that some countries are looking to making laws that do not remove full legal capacity as the UK MCA has done, precisely because of the HR / Equality issue. In whose interests is the MCA? I would not say it is in the disabled person’s interests- lots of money to be made by courts and lawyers and gives jobs to others.