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08th September 2020

Mental Capacity and Human Rights – New NICE Quality Standard (Last update: 08.09.20)

The National Institute for Health and Care Excellence (NICE) has brought out a useful Quality Standard (QS) on decision-making and mental capacity (QS 194, available here). Each NICE QS identifies a specific area of health and social care that is a priority for practice improvement.

What does it say?

It is no surprise that NICE is highlighting the MCA, and not for the first time. We all know that it has been an uphill struggle to get all practitioners, whether in health or social care – or indeed within the Care Quality Commission (CQC) -  both confident enough and competent enough to apply the empowering principles of the Act to enhance people’s lives while knowing when and how to keep them safe, if they might lack capacity to make relevant decisions for themselves.

This QS is based on four quality statements. It sounds simple but there’s lots more in the text behind the headlines which you get if you grab the underlined headings in your text; however, don’t be alarmed, I’ve pre-digested it here for you:
Statement 1
 People aged 16 and over who may lack capacity to make decisions are supported with decision making in a way that reflects their individual circumstances and meets their particular needs.

Statement 2 People aged 16 and over at risk of losing capacity to make decisions, and those with fluctuating capacity, are given the opportunity to discuss advance care planning at each health and social care review.

Statement 3 People aged 16 and over who are assessed as lacking capacity to make a particular decision at the time that decision needs to be made have a clear record of the reasons why they lack capacity and the practicable steps taken to support them.

Statement 4 People aged 16 and over who lack capacity to make a particular decision at the time that decision needs to be made have their wishes, feelings, values and beliefs accounted for in best interests decisions.

We may feel that NICE could simply have repeated the five principles of the MCA, but perhaps they thought they’d done that often enough. However, these quality statements do reflect the MCA principles – which of course they must, since those principles are part of the law.

The first statement picks up from the first three statutory MCA principles, which say that nobody must be assumed to lack capacity:

  • Without clear evidence
  • Without making every attempt to help them make this specific decision for themselves, or
  • Just because someone else thinks their decision is unwise.

The second statement reflects the importance of encouraging people who might lack capacity in the future to make clear statements of the kind of things they would want or not want. This extends to empowering people with information about formal ways they can continue to know their wishes will be met, through advance decisions to refuse treatment or by giving a trusted person lasting powers of attorney. For information, see MCA code of practice here.

Some people won’t want to go this far, but others are reassured by knowing for sure that they won’t be given some particular invasive or painful procedure, such as certain forms of resuscitation, if they lack capacity to consent or refuse at the time.

The final two statements reinforce the importance of getting the MCA basics right by knowing how to assess capacity and make best interests decisions, and by recording these steps properly. The QCS app and policies are a great support here, with practical guidance expanded from the MCA and code of practice.

Who is it for?

Without doubt, this QS is largely aimed at commissioners and those responsible for auditing whether services are working within the Mental Capacity Act (MCA) here and its code of practice here. Hence, it recommends how local authorities and NHS commissioners should collect information about the numbers of people who might lack capacity for ‘big decisions’ – where to live, whether to consent to surgery or painful medical procedures – and explore in detail whether these individuals, and/or their relatives or friends, were happy with how the MCA was used to reach decisions, and how happy they were with the outcomes. So, as we see, there is learning here for providers as well.

Messages for Adult Social Care

  • Brush up on the MCA. This QS explicitly says that commissioners must insist in contracts on MCA compliance, supported by sufficient training. A good way to brush up on learning is to find and highlight, in team meetings and staff supervision, examples of staff working within the MCA.
  • Ensure practice is person-centred. NICE follows CQC in, quite rightly, hating blanket rules being applied by providers. Tailored solutions, creatively designed to fit an individual, are far more likely to be sustainable. And, of course, people are happier with decisions they have been part of and agreed.
  • Record what you’re doing with reference to the MCA. The only way anyone – commissioners, CQC inspectors or relatives – will know whether a provider is working within the framework of the MCA is if you record the real efforts made to enhance Terry’s capacity, or how staff have revisited a capacity decision and tried different ways to help Carola improve her ability to understand, remember and use the information she needs to make this decision facing her. Consult the person and their relatives; quote them as much as you can. Show, by listing the possible options and the eventual decision, how the care package recognises and reflects the person’s uniqueness.

In sum: This QS is a useful tool to reinforce existing good practice, while checking that knowledge of the MCA has not slipped during these hard times. It emphasises how the MCA, with its individual and human rights-based approach, is an essential foundation for managing difficult decisions about the happiness and human rights of each person using care services.


*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

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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