The Mental Capacity Act Code of Practice

6th February 2012

Categories: Advocacy, Mental Health,

A report published on Tuesday by the Mental Health Foundation, the Norah Fry Research Centre and the Centre for Applied Social Research calls for an urgent revision of the Mental Capacity Act Code of Practice.

The report follows a two year study into the effectiveness of the existing Code of Practice and encompasses the views and experiences of 478 health, social care and legal professionals.

At VoiceAbility, mental capacity is high on our agenda and we run several successful IMCA services around the country. Each service exists to support individuals who are deemed to lack capacity, for example those with profound and multiple learning disabilities, mental health conditions, brain injuries and degenerative illnesses such as dementia.

A key concern highlighted in Tuesday’s report was the lack of awareness amongst mental health professionals as to what constituted a lack of mental capacity. “A significant minority of best interests decisions were being made for people who had been shown to have capacity and who could be supported to make these decisions with help or who had been wrongly assessed as lacking capacity.”

This issue is something VoiceAbility advocates come across all too often as mental health professionals rush to conclude that a person is unable to make their own decisions, when in fact they are more than capable with a little extra support. Prematurely denying individuals the option of having choice and control in their lives is something which good advocacy can help to combat, enabling people to have a voice in decisions made about their lives.

Paul’s Story:

“Following a stroke, Paul suffered from communication problems and found it difficult to get his views across about important decisions, such as where he wanted to live. Professionals working with Paul had come to the conclusion that he was only able to answer yes or no to questions asked and this meant that he was given little opportunity to fully participate in decisions about his life.

Working with a VoiceAbility Independent Mental Capacity Advocate (IMCA), Paul’s advocate took the time to get to know Paul and to find out what was important to him and what he wanted from a new home. It soon became clear that Paul was extremely frustrated with the assumption that he could only answer yes or no to important questions.

Using a Talking Mat as a communication tool, Paul was able to demonstrate his likes and dislikes around his accommodation. This helped the advocate to build up a clear picture of what Paul was looking for in somewhere to live.

Creative IMCA involvement in Paul’s life meant that he was able to become meaningfully engaged in decisions which affected him. Paul’s capacity for participating in his own decisions was no longer underestimated, which left Paul feeling much more in control.”

It is estimated that over one million people in England and Wales lack the mental capacity to make important decisions for themselves. Such decisions include receiving appropriate medical treatment, deciding on suitable accommodation and entering into legal agreements.

In Paul’s case, advocacy involvement allowed for the incapacity decision to be overturned. However, where incapacity is correctly assumed, it is essential that mental health professionals have the necessary knowledge and skills to enable best interests decisions to be made on a person’s behalf.

Toby Williamson, Head of Development and Later Life at the Mental Health Foundation, says: “The Mental Capacity Act is a new piece of legislation and it is essential that we make sure that its guidance is effective [and] reflects the complex situations that health and social care professionals face every day... we now know from our research that [the Mental Capacity Act Code of Practice] does not always encompass the complexity of capacity assessments in practice and that staff working in health and social care continue to need support to improve the way that they make best interests decisions.”

Safeguarding is a key element in ensuring that care professionals can make appropriate best interests decisions on behalf of individuals who lack capacity. However, Tuesday’s report revealed that in one third of cases, liberty was being deprived without authorisation from the Deprivation of Liberty Safeguarding process. In a significant minority of cases, interviewers found that mental health workers were unaware of the safeguarding systems in place.

Some equally pressing concerns, highlighted in the research, included prejudicial assumptions that older people who were frail or showed signs of physical illness were judged as lacking capacity without ever being assessed.

Similarly, interviewers found that people with profound learning disabilities were assessed only once, instead of being separately approached for each decision regarding their care.

Following this research, Tuesday’s report calls for:

• The MCA Code of Practice to be revised to enable health and social care staff to make more effective best interests decisions

• Gaps in current practice, such as the possible under use of DOLS, should be highlighted in the Code of Practice

• All providers of health and social care services (including IMCA providers) should be regularly audited for compliance with MCA and DOLS. Compliance should be monitored by the Care Quality Commission

• Care homes should review assessments of capacity and best interests decision-making on a weekly basis. They should ensure that all staff are able to undertake capacity assessments themselves rather than contact specialists for that purpose

According to the Mental Capacity Act, professionals must assume that an individual has the capacity to make their own decisions, unless proved otherwise. However, the report concludes that with one quarter of best interests decisions being made based on factors such as disability, appearance or behaviour, the Act is widely misunderstood. As such, the call by key organisations to have the Code of Practice scrutinised more closely could help to ensure that people’s rights to choice and control are upheld and respected.

Our thanks to:

Mental Health Foundation
Norah Fry Research Centre
Centre for Applied Social Research