Sometimes, even the most robust and positive pieces of legislation suffer the same problems as the issues they are designed to address – lack of awareness and understanding. The Mental Capacity Act 2005 is a case in point. It has a clear purpose to protect and transform lives, yet the message may not be getting through as clearly as we’d like.
Making the case for the Mental Capacity Act
Indeed, the recently published House of Lords select committee report acknowledges the Act’s potential, but takes the view that “too many people who may lack capacity [are] missing out on the legal rights the MCA gives them.”
The report contains 39 recommendations to make the Act more visible and effective, many of which have implications for local authorities, service commissioners and the judicial system.
It’s helpful to remind ourselves of the Act’s definition of ‘lack of capacity’: a “person lacks capacity in relation to a matter if… he or she is unable to make a decision for him or herself… because of an impairment… or… disturbance in the functioning of the brain or mind.”
Making the right decisions about a person’s welfare in these circumstances requires the highest standards of training, care and professional insight, backed by a supportive organisational culture where the MCA is front and foremost in colleagues’ minds.
Take the case of Kemar, a 35 year old man with learning difficulties and epilepsy. He lived happily and independently until a stroke hospitalized him, rendering him unable to make decisions about his onward care. The first care home proposed on his behalf was deemed too small and likely to limit his mobility and social interaction with others, to the detriment of his recovery.
Social workers, working with the Independent Mental Capacity Advocate (IMCA), made sure other options were explored – always with Kemar’s best interests in mind. He was finally transferred to a specialist rehabilitation unit where he made remarkable process and was able to return to supported living. Had social workers not been properly aware of the MCA’s requirements and the IMCA referral service, it is possible his case may not have been escalated so effectively.
It should be no surprise then that renewed sector-wide implementation of the MCA lies at the heart of our joint DH/MoJ response to the House of Lords report. Both departments will be working closely with system partners including NHS England, Health Education England and the Association of Medical Royal Colleges on immediate actions to raise awareness and use of the MCA.
Meanwhile, the Association of Directors of Adult Social Care (ADASS) will be looking at the role commissioning can play in promoting services sympathetic to the tenets of the Act. The Care Quality Commission (CQC) has also prioritised the MCA in the fundamental revision of its regulation and inspection model.
In the end, this all comes back to awareness, understanding and respect, qualities reflected in the title of our response to the House of Lords judgement: ‘Valuing every voice, respecting every right’. The Mental Capacity Act may give us the framework within which to operate, but regardless of legal obligations, this is about doing everything in our power to promote and protect the wellbeing of our citizens.
When individuals cannot speak for themselves we owe it to them to be the best advocates we can.
