09th October 2017

Happy Birthday MCA!

Happy birthday MCA

 

The Mental Capacity Act 2005 (MCA) came into effect on 1 October 2007. After a full ten years of the MCA providing the legal framework for health and social care with adults who might lack capacity, I’ve been musing on how we’ve been doing. Forgive me for writing very personally about this. As one of the first cohorts of MCA Leads in local authorities and primary care trusts (PCTs: remember them?), I’ve been involved with implementing the Act since it came in: this has been my life, for a decade now.

A Brave New Dawn

My word, I was optimistic at the start! This law was far more clearly written than many I’d come across; and the code of practice was actually practical, with examples taken from life, which also made a refreshing change. It all seemed intuitive, and a breath of fresh air.

Before the MCA came in, it had worried me that people with the capacity to refuse treatment for a mental disorder could be detained against their will, and I was even more troubled by the use of guardianship under the MHA for people with learning disabilities. I know that fellow practitioners in mental health and learning disabilities shared my concerns: we were all thrilled to be part of the ‘brave new dawn’ represented by the MCA.

It was a treat to start explaining the new framework for decision-making, both to senior staff in the local authority and PCT and more widely to everyone involved in health and social care throughout the area. In those days, I had a generous budget, so there was no charge for attending, venues were nice and a decent lunch was provided.

Kittens Keep People Awake

I found I took it badly when people lost interest and checked their Blackberries, or, even worse, when eyes closed along the back row, particularly after those generous lunches. I soon learned to add a few jokes and cartoons, or pictures of kittens: things went better when people enjoyed themselves, and the jokes or pictures stayed in their minds.

Practice: Little Change

Care home managers, home care providers, GPs, neurologists and psychiatrists: we invited them all along. Many came and seemed to have a great day, enjoying the real-life case examples I was already building up from my experience of how the MCA framework helped in difficult situations. They appeared to take on board, too, that the MCA is where professionals get protection from liability when people lack capacity to consent to their actions: I felt this was a trump card, and played it with a bit of a flourish.

It all seemed to be going so well. So it was a bit of a shock to find that practice often didn’t appear to change. Many doctors found it hard to believe that people had the right to refuse treatment with capacity if they didn’t like the sound of the side-effects and that professionals couldn’t just use a diagnosis (Downs Syndrome or dementia) to justify imposing procedures or medication against someone’s will. They found it even harder that we, the common people, could take decision-making out of the hands of the medics, both by making advance decisions to refuse treatment we didn’t want, such as CPR, and by giving powers to someone we trusted, under lasting powers of attorney, for them to ‘stand in our shoes’ and make decisions on our behalf if we lost capacity in the future. And care providers were being hit with so many initiatives, often (I thought) rather woolly, inconsistent, and hard to relate to practice: why should they bother with this one, when it did not seem to get the headlines or the attention of the regulators? I’d handed out hundreds of copies of the code of practice; too often it was left unopened on the office shelf.

Paternalistic Doctors and Risk-averse Care Professionals

It wasn’t as easy as I’d thought. A House of Lords committee heard masses of evidence about how the Act was highly praised but not implemented in practice.  People like me were still optimistic, but by now a bit battle-scarred – I’d been working with SCIE to improve practice in the sector, and no matter how many cute kittens I threw into the mix, so to speak, people receiving services were still treated in ways that breached their human rights and the MCA.

It seems that the poor practice goes one or other of two ways.

In the first, people’s incapacitated refusal of much-needed personal care services, or insistence on going for a walk along the hard shoulder of the motorway, is taken at face value despite clear evidence that the person’s capacity should be assessed.  Recent Ombudsman reports show that this is still a problem. In learning disability services, we needed the push we got from ‘My Life My Choice’ to empower people, and the MCA stresses that too. Yet service providers must use their skills within the framework of the MCA to decide when to assess capacity, and be prepared to make decisions, and act, in the person’s best interests if they turn out to lack capacity for a specific decision or series of decisions.

In the second kind of poor practice, providers go too far the other way. They are so concerned about how things might go wrong, the person might fall, or get lost, or act in a way that might lead to the provider being blamed, that people are over-protected and their freedoms restricted. And I can’t deny that we do live in a blame culture.  Which brings me to:

April 2009: Further Change, Further Challenge

Some of you might call this the ‘double (or even triple) whammy’. The deprivation of liberty safeguards (DoLS) were brought in, with lots of bureaucratic language to get our heads around and, more importantly, providers were suddenly responsible for identifying the slippery concept of deprivation of liberty in practice, and seeking authorisation. This at a time when many didn’t even understand the basics of how and when to assess capacity, or how the MCA defines restraint.

And the regulators of health and social care were amalgamated into the Care Quality Commission, with all the teething problems you might expect (and a few more for good measure).

At the same time, the banking collapse meant that all health and care budgets were drastically cut, meaning there was little support for implementing such a complex system, and services were increasingly put under such pressure as they had never experienced.

MCA, Where Are We Now?

Well, the CQC brought in mandatory inspection against the MCA for all providers of adult services – yes, on my watch, and I’m grateful to them for allowing me to bang on so effectively. This is a single step which, practically, is making a difference. I know you don’t fatten a pig by weighing it, but what gets inspected does tend to be thought about more seriously.

Deprivation of liberty was simplified by the Supreme Court in the Cheshire West case. At a stroke, the current DoLS system virtually collapsed under the weight of applications from providers who realised they were breaching people’s human rights and needed authorisation – both for the sake of the people being restricted, but also to gain necessary protection from liability for the staff and the provider.

Thanks to the current awful situation with DoLS, we’re fairly soon going to get a new legal framework to replace them. This’ll be a chance for a new, updated code of practice, and a re-emphasis, I hope, on the importance of the wider MCA in health and social care.

The culture is changing, slowly. I felt very daring, a decade ago, saying that the Mental Health Act should be part of the MCA, with no compulsory treatment of people who’ve found their own ways to manage their illness: this is now being seriously considered, and is already the law in Northern Ireland.

Reasons to Stay Optimistic

We’re not there yet, but on the way. We’re learning to balance giving people with capacity issues as much freedom as possible to live as they want, with knowing when to protect them from harm in their best interests. We recognise that relatives and friends are a gold-mine of information about people so that our services can take account of the uniqueness of individuals. I hear heart-warming tales of the DoLS processes saving people from unnecessary restrictions. And the regulator applauds the search for the least restrictive option, accepting that sometimes the risk of harm must be balanced against someone’s happiness.

More than anything else, though, I’m optimistic because you’re reading this. We’re now thinking, in a new way, about how to balance necessary care with the kind of freedoms we would all want. QCS has made it easier for us all to get it right, with the right policies and guidance. And I’m so glad we’re talking about mental capacity.

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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