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16th August 2013

Is the Mental Capacity Act working? Your views count.

The Mental Capacity Act 2005 (MCA) has been up and running now since 2007. Whether you’re a care home manager, or you are caring for a family member, you may well have seen the Mental Capacity Act in action. Now is your chance to comment on how well you think it is working. The House of Lords has established a Select Committee on the Mental Capacity Act to look at evidence and are now inviting written submissions by 2nd September 2013. The Select Committee will report in February 2014. Anyone can make a submission, so don’t think it’s just for the ‘experts’. In fact one of the key features of the Mental Capacity Act is how widespread the range of decision makers is under the Act. Have a look at the list of people in the introduction to the MCA Code of Practice who are required to have regard to the Code. The list includes doctors, dentists, ambulance staff, care assistants and home care workers, to name just a few! So I hope all of these will think about their own experiences of the Act and be encouraged to give their views as to how it has worked.

In my experience of lecturing on the topic of how the law can protect people with mental disorder, the biggest area of confusion is how the Mental Capacity Act links with other laws and policies. Practitioners are faced with different mental health laws that might be applicable in different situations, in particular whether they should use the Mental Health Act or the Mental Capacity Act. Consider a case example; a physically and mentally frail resident in a care home appears well-settled. A friend of the resident comes to see them and tells them they could take them home and look after them. The resident starts to become distressed and agitated. This is a worrying situation and the care home staff will be wondering, can we stop the friend visiting or can we prevent the resident leaving and might we need to use the law to manage this situation. The question then is ‘which law?’ Here are two possible responses using two different laws:

  • The Mental Health Act 1983 (amended in 2007) includes a power of Guardianship. This is not about taking the person into hospital, but to give a power to the local authority to act as Guardian, so that the local authority could determine where the person lives in the interest of their health and welfare.
  • The Mental Capacity Act can operate where the resident lacks capacity to make decisions. In this way, the care staff can determine what is in the persons’ best interests. However, if that means ensuring the resident does not leave the home, and prevents the friend visiting, that might well constitute a deprivation of the resident’s liberty. For that to be allowed, the care home would need to seek an authorisation for this under the Deprivation of Liberty Safeguards, which were a later amendment to the Mental Capacity Act 2005.

Are you confused now? Don’t worry, you’re not alone! A number of expert commentators have commented how complex the law has become, particularly in the light of recent case law judgements. So let’s go back to the case scenario. Which law do we use, if any? Well, we’d need to gather more information from the resident, the friend and others, but hopefully in discussion with other members of the wider care team, these problems can be worked through and an appropriate solution can be found, using the law where necessary. The QCS Policies on the Mental Health Act, the Mental Capacity Act, and the Deprivation of Liberty safeguards provide a useful reference point if these are being considered by the wider care team.

There are 27 questions in the House of Lords select committee submission document, and people are invited to respond to some or all of them. One of the questions that caught my eye was ‘How well is the relationship with the mental health system and legislation understood in practice?’ It is actually quite easy to see why this relationship might not be widely understood. After all, there a whole number of differences between the two laws (the Mental Capacity Act and the Mental Health Act) that might seem to offer a solution to the kind of scenario I’ve outlined above. Here are some of the features of both Acts, which might explain why the law has become so complex in this area:

  • The Mental Health Act was written by the Department of Health, and the Mental Capacity Act by the Department for Constitutional Affairs – two different government departments.
  • The Mental Capacity Act is all about acting in someone’s best interests. The Mental Health Act takes a wider view, including the health and safety of the person, and the protection of others.
  • The Mental Health Act has been around a lot longer than the Mental Capacity Act. Partly for this reason (and there is recent case law to back this up), where the primary purpose is to get mental health care and treatment for someone with a mental disorder, then the Mental Health Act is the law that is most appropriate.
  • The Mental Capacity Act applies to people who lack mental capacity to make certain decisions; the Mental Health Act can apply to people with or without capacity.
  • The person’s nearest relative has a whole number of powers under the Mental Health Act, not so under the Mental Capacity Act, though we would be expected to consult with family and friends to try and work out what someone’s best interests are.
  • Sometimes people think using the Mental Capacity Act doesn’t quite carry the stigma of using the Mental Health Act.

Maybe the House of Lords exercise of hearing people’s experiences will bring about some changes that do make it easier for practitioners, families, care staff and residents? If you would like to respond to the exercise have a look at the questions on the submission document here:

Select Committee on the Mental Capacity Act 2005 – Call for Evidence 

You’ve not got long to submit your views.

*All information is correct at the time of publishing

David Beckingham

Mental Health Specialist

David Beckingham is a self-employed independent trainer, and is also an honorary lecturer with the University of Cumbria. His professional background is as a social worker and he has worked in care homes for older people in Cumbria. David’s main area of expertise is in mental health. Prior to becoming self-employed he was a Staff Development and Training Officer with Cumbria County Council, both commissioning and delivering training to mental health workers and others in statutory and independent sector organisations. Read more

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