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13th January 2017

Mental Capacity, Her Majesty the Queen, and the Regulator

Mental Capacity, Her Majesty the Queen, and the Regulator

I never for a moment dreamed that this would happen, but I was awarded an MBE in the New Year Honours List. I was listed for my work with the Care Quality Commission as their Mental Capacity Act Lead, and the reason was ‘services to vulnerable people.’

Please don’t think I’m telling you this to boast.  Quite the opposite: I certainly don’t deserve to be singled out in this way. I know that pretty well everyone who will see this blog works with, or on behalf of, vulnerable people. I also know that we all do it because we’re driven by a complex mixture of our own personal history, compassion, and wanting to see fair play. And we love what we do, or we wouldn’t be here and we wouldn’t be any good at it. We all gain so much, from the wisdom, or humour, or gentleness, or downright bloody-mindedness of the people we get to know through serving them in some way.

The power imbalance

We recognise, don’t we, that we have power over people’s lives, and over their happiness. We don’t want to ‘throw our weight about’ but, all the same, there’s a risk that, in the rush of daily activity, we might be thoughtless, or unobservant, or inconsiderate. We might do things in the way that seems most time-efficient rather than how the person prefers. We may not take the time to find out why someone doesn’t want to have a certain intervention, or we might try to impose our opinions without exploring someone’s cultural background. 

The Mental Capacity Act (MCA) Code of Practice

Come on, you knew I’d work around to this!

And you know how to avoid your staff thoughtlessly abusing their power over the lives of vulnerable people. The ‘golden thread’ that runs through the entire MCA is that, though someone might lack the mental capacity to make a decision, you should always encroach on their wishes only when you have to, in their best interests, and as lightly as possible.

This is more likely to happen if you set the example of checking your own practice against the Principles of the MCA. You should also share with your staff bits of the MCA Code of Practice, such as the chapters on supporting people to make their own decisions (chapter 3), or working out what is in someone’s best interests if they lack mental capacity (chapter 5). The Code of Practice is a great resource: easy to read (and there’s an ‘Easy-Read’ version of the MCA online for staff who are still improving their English.)

The Regulator and the MCA

The thing that pleased me most about being awarded this honour is that it shows, without any doubt, the value that the CQC puts on the empowering ethos of the MCA. They’ve highlighted it publicly, by nominating me for this award.

I think the MCA has suffered from being sidelined as ‘not important’ or just something a bit woolly and aspirational, that doesn’t affect practice. By appointing me in 2013 to help the organisation embed the MCA into its policies and practice, the CQC did send a clear signal that the MCA matters. Then by creating a specific Key Line of Enquiry (KLOE) about the Act, they put the MCA into the heart of every inspection of services for people aged 16 and above.

We have known for a while that the Regulator recognises the importance of the MCA, and that it expects us to work within its framework whenever people might lack mental capacity. And now the CQC has left us in no doubt that they really value the Act. I am delighted that they do, and it’s given me renewed enthusiasm for improving the confidence and competence of their inspectors.

So, review your practice and that of your staff, and use the Code of Practice to up their game if needed. The MCA is coming to a provider of health or social care near you!

*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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