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This blog post was published under the 2010-2015 Conservative and Liberal Democrat coalition government

Capacity for good practice?

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Safeguarding, personalisation, empowerment, reablement, shared decision-making, person-centred working, recovery, care planning, choice and control, dignity, risk decision-making, consent – some of the key policy terms, processes and concepts that underpin and inform health and social care practice, or endemic and infuriating jargonology, depending upon your viewpoint. Many are inexorably linked together, creating complex webs of policy and practice for professionals and other staff.

Is there anything missing from the list? I expect so, but one thing that is interesting about this list is that none of the terms have legislation built around them. Mental capacity is of course a key term that is missing and does have a legislative framework built around it, the Mental Capacity Act 2005 (MCA). And mental capacity is also a concept that underpins every single item on that list; if one understands mental capacity and can apply the good principles, processes and safeguards of the MCA then one has built the best possible foundations for health and social care services that are truly responsive to the needs and wishes of people using those services.

A growing body of research indicates that where practitioners understand the MCA (even the Deprivation of Liberty Safeguards) – and it’s generally not a difficult or intimidating law to understand – it’s seen as helpful, empowering and beneficial to practice. The research we did with Bristol and Bradford universities into best interests decision-making certainly supports this.

Why then is there also evidence that the MCA is poorly understood, or even ignored? For any practitioner who wants to show respect to patients, service users or clients the MCA is a pretty good starting point. And if you value your own ability to make decisions then the MCA is potentially there to empower and protect you, should you develop an illness or condition which affects that ability.

There is a  House of Lords Select Committee currently reviewing the MCA. Like many other witnesses, our evidence emphasised the importance of raising awareness and improving understanding of the MCA, not changing it, at least for the foreseeable future.  Good laws should support good practice so for those of you who know about it, promote it among colleagues, and those who don’t, wise up!


Toby Williamson

Head of Development & later Life

Mental Health Foundation

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  1. Comment by Shurleea posted on

    The MCA still allows the use of ECT for sectioned patients even when the patient has made an Advanced Directive when they were all, making it very clear indeed they refuse to be electrocuted. ... Sorry there is no other word for this outdated barbaric abuse.
    If you want respect patients wishes, then ban the use of electrocution (ECT) where an AD is current. It is abuse and is still used on the frail an elderly. It is NOT a life saving treatment and can be harmful.

    Psychiatrists need to look to the root cause of an illness instead of relying on the ICD10 and the BNF.
    On their basis, buy these two books and anyone can be a psychiatrist.

    Stop using barbaric treatments especially when the patient has made it very clear they do not want it inflicted on them, even if that means they may die, nobody has ever died having refused to be electrocuted but many have by being abused with this process. Psychiatrists need to live in the real world and care for folk rather than expecting medication to their job for them. They are useless!

    • Replies to Shurleea>

      Comment by Toby Williamson posted on

      A couple of responses to the comments on my blog.

      Responding to Shurleea’s comments, it is unusual for ECT to be given under the MCA and if it is, it must not over-ride a valid and applicable advance decision to refuse treatment made by the person. If a person is unable to consent to ECT it would usually be given under the Mental Health Act. The Royal College of Psychiatrists and Mind have more information about ECT and the law on their websites.

      Regarding George’s comments, I’m sure the MCA will be reviewed in time but my point was that it’s probably too early to do this as the evidence indicates that where people understand the MCA it is well thought of - the challenge is to ensure more people do know about it and understand it! As you indicate, there’s been 20-25 year cycle for review and reform of the Mental Health Act so doing the same to the MCA after less than 10 years seems a bit hasty.

  2. Comment by BillC posted on

    I agree with the comments made and do think the MCA is an empowering piece of work and seeks to put good practice into a legislative framework. As a training officer training MCA basic awareness the thing that most often comes up is the test and that word "reasonable". Practitioners get anxious about this and dont want to be reasonably sure about someones capacity that want to be absolutley sure, or at least beyond resonable doubt. Also, other departments within a local authority dont understand it, especially Housing. They can see it as something social care hide behind. "Well if he/she has the capacity to live that way, there is nothing we can do about it." Sometimes an assessment is something for the service to hide behind.
    The importance of raising awareness and improving understanding of the MCA is absolutely key and needs to braoden to the general public too and improve take up on LPA's. I don't think much will change until you get ordinary people saying "and can you tell me why you think my dad does/doesn't have the ability to make that decision himself and the process the got you there?" rather than saying, "OK, you're the expert."

  3. Comment by George Platts posted on

    "Not an intimidating piece of legislation"? I don't understand how anyone who truly understands the vast scope of the MCA could not find it intimidating. Speaking as a service manager in adult services, I regularly come across misunderstandings of the concept of capacity, legal duties and powers, but I wouldn't blame the act for that. Rather, it helps to highlight them and, as you say, supports best practice. Change it? Of course review is needed. This is the first comprehensive piece of legislation dealing with mental capacity in english law. Compare this to the Mental Health Act, whose current shape can be traced back more than 50 years to the 1959 act despite substantial revisions in 1983 and 2007. Why not revise and refine capacity legislation in the same way?

  4. Comment by Tom Cooper posted on

    You are correct in saying that the MCA 2005 is easy to understand as it is that rare thing - a masterpiece of legal drafting. I work as a consultant in the care industry and see time and again how social workers and others ignore the base principle of the law, namely that mental capacity has to be assumed unless it has been established that a person does not have it to make a particular decision at a particular time. Why do they do this? Not out of ignorance - I think it's because the time and decision specific nature of mental capacity as defined by the MCA is inconvenient and liable to create far more work as if it's applied properly professionals have to help vulnerable people make individual decisions as they crop up. It's much simpler if you can decide that the person does not have capacity for anything and then make your so-called best interests decisions basically without reference to the individual concerned, or just paying lip service to the idea of assessing mental capacity. So when you tell people to "wise up", in fact they already have because they are doing what makes their lives easier and it's hardly surprising given the enormous caseloads these professionals always have, compounded by the tendency to believe that they know what's best for someone, that seems to pervade the professions. The answer to getting better practice would be for social workers and the like to be spread less thinly so that they have a chance to consider things more carefully and really to support people to make decisions for themselves as the MCA and the code of practice require. How likely is that to happen in an era of cuts?

  5. Comment by shurleea posted on

    If a patient has a valid Advance Directive refusing ECT under any circumstances, even if that means the patient may die, it can be, and is over ridden by a second doctor signing to authorise this abuse.

    It is time mental health care came out of the dark ages and stopped abusing patients simply because they fail to do their job properly.
    If the patient refuses to consent to electrocution, they place them under a 'section' and go ahead anyway, that is an abuse of power that has always been part of the mental health system.

    It does need to be written into the MHA that if a patient has a valid AD refusing ECT under any circumstances, then it stands in law.
    ECT is not a life saving treatment.
    Nobody knows how it works.
    It does affect the long term memory and I have known patients, particularly the elderly, that had died after such an assault.
    If a patient consents, then that is their choice!

    It is any wonder that patients avoid coming in for treatment because we know, once inside those locked doors, we are at the mercy of the internal monsters!

    Mental health care is not about 'care' but 'control', there is no real treatment, just endless medication with all its side effects. Psychiatrists don't talk to patients any more, they depend on the ICD10 and BNF. I tend to see them as failed GP's, not proper doctors at all and get much better care via my own GP who makes the time to talk, and is there when we need him
    Why can't appointments with psychiatrists be made in the same way as GP's, when we need to see them, just ring for an appointment. Often patients are given appointments when they don't need it, but cannot get one when they do.

    Mental health care is still in the dark ages, lock folk in wards, a square day room staring at each other all day, and a life planned by the clock, but void of any real care!

    I will fight to get ECT banned where there is a valid AD refusing it.
    Psychiatrists just work their way through the BNF until hopefully something works, by then the patients has given up and dropped out of the system!
    What a sad reflection on the NHS today, mental health care will always be the Cinderella when it comes to funding. Stigma was born in, and nurtured by the NHS!