UK: Legal And Regulatory Review Implications Of The Mental Capacity Act 2005 For Adult Health And Social Care Service Providers

Last Updated: 28 April 2009
Article by John Wearing and Jon Lloyd

Received (in revised form): 27th May, 2008

Abstract

This paper assesses the impact that the Mental Capacity Act 2005 has had on service providers, the level of understanding of the Act in practice, and changes to the regulatory framework by reference to the Commission for Social Care Inspection, the new Court of Protection and the Office of the Public Guardian. It gives examples of key issues where there is evidence of some misunderstandings about the provisions and operation of the Act. It identifies practical steps that managers need to address, in particular in relation to policies, procedure and training, and in relation to contracts.

INTRODUCTION

The Mental Capacity Act 20051 (MCA or the Act) came fully into force on 1st October, 2007, along with its accompanying Code of Practice.2 It has modernised the law and also introduced significant changes, in particular:

  • It has introduced new statutory principles and a statutory framework for assessing capacity. Everyone is deemed to have capacity to make a particular decision until proved otherwise and only then can a best interests decision be taken by someone else.
  • The law has been extended from decision making in just financial matters to include health and personal welfare issues, providing for the first time a machinery for dealing with such matters, where, save for the most serious health decisions, there was none before.
  • Lasting Powers of Attorney have been introduced to replace Enduring Powers.
  • There has been a radical overhaul of the role of the Office of the Public Guardian (OPG) and the Court of Protection's powers and procedures.

Six months in, and all those affected by the new MCA are still getting to grips with its implications. It is likely to be another year or more before anyone can start to assess its long-term impact. It is said that the MCA has not radically changed things but rather has provided a new statutory framework into which existing good practice has been incorporated. With regard to the tests of capacity and the application of best interests principles that is broadly correct, but in truth the Act will over time subtly change a great deal.

The paper will look first at the challenge to management, specifically those in charge of homes, groups of homes or general managers with operational responsibility in residential and home care. The paper will then highlight several examples of how the Act is working in practice. The paper does not deal with the substantial new duties placed on managers to comply with the Deprivation of Liberty Safeguards from 1st April, 2009.

THE CHALLENGE FOR MANAGERS

The five core principles that underpin the Act are contained in section 1. Managers must:

  • assume capacity unless proved otherwise;
  • take all practicable steps to help a person to make a decision for themselves;
  • accept that someone can make an unwise decision without it meaning they lacked capacity;
  • in making a decision or doing something for someone without capacity act in their best interests;
  • take a least restrictive approach.

There is growing awareness of these principles, at least at the manager level, but for those engaged in the provision of social care there is a duty to adhere not just to the principles set out in the Act but also to follow the Code of Practice — all 296 pages of it.

Embracing these does require a step change in the ethos and culture of care delivery even for the best providers. The real challenge here is that this really is not something management can pay lip service to. Delivery of compliant services is down to each and every member of staff who has direct contact with service users. The responsibility is a personal one. The role of management is to ensure through training that there is awareness of the core principles and requirements, and proper policies and procedures, including record-keeping arrangements, guidance and access to information.

The regulators and commissioners have been on as steep a learning curve as all other stakeholders, and thus far have said very little about the MCA. Inevitably they will increasingly be looking for demonstrable understanding of and compliance with the Act and Code. The new criminal offences of ill treatment or neglect carry a potential sentence of five years imprisonment3 and, in the current climate of anxiety about elder abuse and abuse of vulnerable adults generally, it can be anticipated that this may lead to more resources being allocated either to the OPG or to the use of the MCA to support existing regulatory activities. In the context of the Commission for Social Care Inspection's greater reliance on self-regulation and concentration on poorly performing providers, all providers would be well advised to have a demonstrably high level of compliance. It is important therefore for managers to be reviewing what is already in place and introducing changes to policies and procedures where necessary, and most importantly, reinforcing awareness through both induction and regular training/reviews.

PRACTICAL EXAMPLES

How unwise can one be?

Given the terms of core principle 3 within the context of the very strong emphasis in government policy on personal choice for service users, a key question is 'How unwise can one be?'. In some quarters, the principle is being interpreted as meaning that if someone is doing something unwise, regardless of the consequences for themselves or for others, there is nothing that can be done. Examples the authors have come across include:

  • the previously fastidious elderly lady with the onset of Alzheimer's who resolutely refuses to wash or change her clothes;
  • the elderly gentleman patently neglecting to eat, refusing all offers of help such as meals brought to the door;
  • the person repeatedly ordering and receiving identical expensive consumer goods that he has no use for; and
  • the elderly lady with a tendency to lose balance and fall adamantly refusing to heed requests from staff in her care home that she move from a first floor to a ground floor room for her own safety.

Principle 3 is to be balanced alongside principle 1 in respect of capacity. The Act makes it clear4 that 'capacity' includes the ability to understand information relevant to the decision including the consequences of making a decision one way or the other or not making a decision at all. In each of the above examples, the person may lack capacity on that basis, therefore justifying intervention in their best interests. The Act properly gives emphasis to the right of the individual to make their own decisions and also provides machinery to protect the vulnerable.

Identifying the decision maker

There is some confusion over this issue. The key point is for carers and care managers to identify who, in respect of particular issues, is the decision maker who decides whether a person has the capacity to decide something for themselves and also, where they do lack capacity, decides what is in that person's best interests. The Act places responsibility for decision making in relation to personal welfare matters on individuals providing care.5 The exception to this is where someone else, normally a close relative or friend, has been given responsibility for personal welfare decisions under a Lasting Power of Attorney, or by an Order of the Court of Protection;6 however, that will be rare, especially in the early days of the Act.

The Independent Mental Capacity Advocate (IMCA)7 introduced by the MCA is not a decision maker, although this is not understood by some professionals. The circumstances where an IMCA should be appointed are limited to cases where a significant change for the individual is being considered, where adult protection issues arise, or where serious medical treatment is contemplated and there is no one already involved who can take on the role of friend or advocate. The IMCA is there to listen and counsel, and to be an advocate for the individual to ensure their interests are properly addressed, but not to make the decision.

Staff need to be aware that responsibility under the Act, both civil and criminal, is personal not corporate, although an employer in most situations in civil proceedings would be vicariously liable as well. Even where the staff member responsible seeks expert advice, for example, from a professional social worker, a doctor or lawyer, they retain the responsibility to make the assessment and/or the decision and they need to know when a third party such as the doctor or social worker ought to be taking over that responsibility.8

For day-to-day decisions, such as what to wear, what to eat and whether to watch television, the decision maker will be the carer with the person at the time. This is why it is important that care assistants have a good understanding of the principles and the Code of Practice because, provided they follow them, they have legal protection under section 5 of the Act.

It is in the case of more difficult welfare decisions that the identity of the decision maker can have important consequences. Where someone is in residential care, the responsibility will generally be with the care home management (for certain issues it may be the commissioner of the service or at least shared with the commissioner). Where someone is in their own home, the decision maker could be, according to the circumstances, a family member or friend, the provider of a care service, or the commissioner of the service.

The distinction is best shown by two examples. It is relatively straightforward for care home management following best interest principles to deny family access to a resident lacking the capacity to make such a decision where such visits are putting him at risk and causing great distress and disruption to his routine:

  • Kevin is in his mid-20s and is autistic. He has presented challenging behaviour throughout his life. After a number of adult residential placements he is now settled in a care home that understands his needs and is able to manage his behaviour. In particular, Kevin responds badly to unexpected changes of plan. Family members return from abroad and want frequent contact, but unfortunately do not understand Kevin's condition and are unwilling to listen to and learn from those who care for him. As a result visits are extremely stressful, Kevin is confused, his behaviour becomes very difficult to the extent that he has been placed at risk from traffic, and he has taken several days to settle afterwards. The managers of the home, as the decision maker in respect of personal welfare, are clear that Kevin does not have the capacity to understand the consequences of seeing his family in this way and stop visits in his best interests. They are working with the social worker to establish conditions for visits in future.

Conversely, the decision can be very difficult if the decision maker is a carer or family member with whom professionals disagree or find it hard to work. In such cases it will be important for the professionals involved to review all their options under the Act and the Code and take advice if necessary:

  • Brian sustained serious injuries including brain damage in an accident. He received very substantial compensation. At the time a distant relative was appointed as his Court of Protection Receiver. A property was purchased for Brian and his Receiver (now Deputy) lives with him and has also assumed the role of organiser of Brian's care. There are concerns that Brian's needs are not being met and that Brian's wish to have contact with other family members is being denied. An advocate has been appointed. The professionals make every effort to take control of Brian's care. If unsuccessful, they have the option to make an application to the Court of Protection for a declaration as to what care arrangements are in Brian's best interests, but this would be the only way to displace the primary carer as the person who has the duty to make the relevant decisions given the proximity of the relationship and the absence of any 'management' role within a private home.

Internal policies and procedures

It is important to be clear who, within a care organisation, is authorised to be the decision maker in different situations, and for different types of decision. Good providers will have in place clear guidance as to what care assistants are expected to deal with (eg what a resident wants to eat), when something needs to be referred to the manager on duty (eg the resident is asking to eat something which for him presents a known risk of choking) and when the issue needs to be referred for a full review (eg the resident continues to ask for solid food with family support).

It is also important to have in place procedures that guide staff through the assessment of capacity and, where appropriate, determination of best interests, and to keep proper records. The policies and guidelines need to be established and incorporated into inductions and regular training.

With regard to record keeping, the challenge is to ensure compliance without overburdening staff with paperwork. There is a real danger that staff could be diverted away from their primary task of providing care, or worse still, avoid engaging with service users because of the resulting form filling. There is a balance to be struck. In the above example where the choice of meal is uncontroversial then it may not be necessary to make any specific record, whereas when the risk is identified, the staff involved should record their assessment of whether the resident has the capacity to decide (which would need to include an assessment of whether they understand the consequences) and if, but only if, they decide that there is no capacity, their assessment of what is in the resident's best interests and the reasons why.9 If this appears tediously bureaucratic then ask the question: 'Suppose the resident eats the solid food and chokes to death. . .?'.

Protection for carers

The Act gives substantial protection for carers, provided that they embrace the principles of the Act and assess capacity and, if appropriate, best interests following the Code. Section 5 provides that where a carer makes a decision on a client's behalf they will not incur any liability (for example, for technical assault due to lack of consent) if they reasonably believe that the client lacks capacity and that the decision is in their best interests. On the other hand, the Act requires courts to take into account the Code of Practice and compliance with it in any criminal or civil proceedings,10 so in the event of something going seriously wrong, a failure to comply can have serious consequences despite the protection offered.

Health and welfare cases in the Court of Protection

The Act extends the jurisdiction of the Court of Protection beyond purely financial and property ownership to cover health and welfare issues.11 For example, the Court can make a declaration as to whether an individual has the capacity to make a particular decision, or whether any action proposed is in their best interests. The Code of Practice gives every encouragement to try to resolve issues without resort to the Court.12 Such exhortation is probably unnecessary having regard to the fees and significant legal costs involved in an application to the Court especially as carers who bring or become a party to proceedings are likely to have to meet those costs themselves.

At the time of writing (November 2008), the serious problem of delay by the Court in dealing with applications appears to be improving. This is important because, for the vulnerable individuals affected, justice delayed can be justice denied.

Contractual issues

It may be helpful where the service user lacks or may lack capacity to make some decisions for themselves to include within contracts between providers and commissioners provisions governing who will be the agreed decision maker in respect of different types of decision.

There have always been issues about whether someone with limited ability has the capacity in law to make a contract with a care home or home care agency supporting them in their own home. Direct payments and individualised budgets are becoming more popular and there is an extra dimension to providing services directly where the service user lacks or may lack capacity to enter into a contract. The approach to contracts in such cases needs careful thought. Practice and understanding varies widely. It is up to the local authority to assess the individual's ability to enter into a contract and individual carers or organisations may be asked to contract:

  • directly with the service user; or
  • with an agent for the service user; or
  • with the trustees of a trust set up to receive the funds; or
  • they may receive funds directly into a service provider user account.

There is an emerging market of independent advisers and brokers. Providers need to take great care to ensure that they are contracting with the right person, which basically means the person who controls the money.

CONCLUSION

The Act was a long time coming and will take a long time to have its full effect but it is a generally positive piece of legislation. It has significantly helped carers and providers to understand the nature of their role when caring and making decisions for others and for individuals it has struck a good balance between freedom and the avoidance of harm.

References

1. See: www.publicguardian.gov.uk/mca.

2. Ibid.

3. Mental Capacity Act 2005, s. 44.

4. Ibid., s. 3.

5. Code of Practice, paras 4.38 and 5.8.

6. Ibid., para. 5.8.

7. Ibid., chapter 10.

8. Ibid., para. 4.47.

9. Ibid., para. 5.52.

10. Mental Capacity Act 2005, s. 42(5).

11. Ibid., ss. 15–18.

12. Code of Practice, ref. 5 above, chapter 15.

First published in the Journal of Care Services Management Vol 3 Number 2 (January-March 2009).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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