29th March 2018

MCA in Nursing Homes

Get the Basics Right

Most of you will know by now that I do get bees in my bonnet and am likely to let them fly in your direction and I don’t really apologise for doing it again. The thing is, I’ve been re-reading lots of reports recently released, either by Safeguarding Adults Boards, or by the Ombudsman, or even as part of the CQC’s annual State of Care reports. It’s good to take a look at why things go wrong when they do: it’s the way we learn, and the best way to improve practice. But when it comes to the Mental Capacity Act (MCA) it seems that many of us just aren’t listening to what these reports tell us.

Always the Same Issues

Time after time, all the professionals concerned with a person who might lack capacity to make some crucial decision – such as where to live, or whether to have a certain medical treatment or care intervention – fail to use the framework of the MCA to work out what to do.

The examples can be harrowing, and the failures are emphatically not all on the part of care providers: GPs, social workers, paramedics and hospital doctors are also capable of getting it wrong.

How it went Wrong in Practice

A Safeguarding Adult Review that keeps coming back into my mind is about the death of Mr A, aged 64. He was a former alcoholic, living in a nursing home with complex health problems including Diabetes, Epilepsy and Korsakoff’s Syndrome, an alcohol-related Dementia. This is a picture that may well be familiar to many of you, as indicating someone who is really difficult to care for. In this case, Mr A persistently refused treatment, sometimes aggressively, for festering leg wounds. More than one nursing home struggled to care for him. A major factor, which prevented any coherent care planning , was a failure to use the framework of the MCA to make decisions about how to interact with him.

On the face of it, his refusal of care met the two-stage test of lack of capacity, set by the MCA. He had an impairment of, or disturbance in the functioning of, the mind or brain: his Korsakoff’s Dementia is evidence of this. And he also seems to have been unable to carry out the next stage: can the person understand, retain, and use or weigh information to reach a decision and communicate that decision. He had ongoing delusions that only one hospital in the country could be trusted to treat him, and he did not accept the evidence he was given about the grave risks to his health by refusing care and treatment, so was not able to use and weigh this evidence to help him reach a decision.

One of the oddest – and saddest – elements here was that, despite knowing that he was subject to a DoLS authorisation which can only be given when a person lacks capacity to consent to being in a certain setting for the purpose of being given necessary care or treatment. Staff went on regarding Mr A’s refusal of treatment as being made with capacity. So did an out-of-hours GP, and an ambulance crew, so it’s not only the care home staff who were confused.

But failure to recognise that he lacked capacity to consent to or refuse treatment meant that his infected legs were not treated at all. This, in turn, meant that by the final days of his life, he was suffering seizures from infections, and maggots were dropping from his wounds to the floor when he moved. His death was lacking in dignity and could have been prevented.

The full report is here and a useful learning briefing.

How to Get it Right

Firstly, stop being scared of the Mental Capacity Act! It puts into law existing best practice – such as enabling and empowering people to be happy and make their own choices wherever it is humanly possible for them to do so. It also gives you the power to provide care or treatment, in the person’s best interests. Your protection from liability extends to restraining a person in order to provide these, as long as the restraint is necessary to prevent harm to that person, and a proportionate response to the likelihood and seriousness of that harm.

So a good capacity assessment, followed by joint best interests decision-making, might have led, for example, to the GP prescribing sufficient pain relief and possibly sedation to enable treatment of Mr A’s infected legs. If the level, say, of covert medication and ‘Chemical Restraint’ by sedation became concerning, the commissioners should have considered whether to take the case to the Court of Protection, to ask whether the court agreed that the care plan was in Mr A’s best interests. This emphasises the need for joint decision-making wherever needed.

Secondly, learn your way around the MCA code of practice

It is your legal responsibility to ‘have regard to’ the code, so it’s a good idea if you do. (The same is true, of course, of all doctors, social workers and paramedics). Also, it’s a brilliant resource to help explain your options, when you are batting complicated situations where someone’s capacity to make some essential decision may be in doubt.

Thirdly, when a situation is this complex and difficult, encourage as much communication and joint decision-making among professionals as you can. Remember that you may need to be the person who reminds the group about the requirement to work within the MCA, and what this would look like. Clearly, all too often, someone has to do it, so that events like the sad death of Mr A are prevented.

*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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