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Using the Mental Capacity Act to protect people’s rights

Posted by: , Posted on: - Categories: Care and support, Guest author, Safeguarding

The last time the Social Care Institute for Excellence (SCIE) had a Mental Capacity Act (MCA) film to promote, Practice Development Manager Hugh Constant posted about it on social media, whereupon a friend told him he wouldn’t watch, because the MCA wasn’t ‘about him’.

Hugh Constant: [The film] is aimed squarely at, those who may have need of the protections the MCA offers – and that of course means everyone.
Hugh Constant: [The film] is aimed squarely at, those who may have need of the protections the MCA offers – and that of course means everyone.
I tried to tell him then that it’s an act for everyone. That’s the message of SCIE’s newest MCA film, Using the MCA.

When the House of Lords recently scrutinised the MCA, among their conclusions was that not enough people know about the legislation and the protections it offers people who want to make their own decisions about what they do. I’d agree; not enough of the people, served by the social work teams I’ve worked in over the years, have known about how much the MCA can help.

Using the MCA has been commissioned by the Department of Health, as part of the governmental response to the House of Lords scrutiny.  It’s a film featuring, and aimed squarely at, those who may have need of the protections the MCA offers – and that of course means everyone.

A still from Using the MCA: The Mental Capacity Act protects the right of everyone to make choices and be in control of their lives.
Using the MCA: The Mental Capacity Act protects the right of everyone to make choices and be in control of their lives.

So we do hear from people with learning disabilities, older people, people with mental health problems, and from carers – explaining how using the MCA has protected their right to make choices, even unwise ones, and to live a life in which they are in control. We hear how it can be used to challenge services if they act in unduly restrictive ways. And people who use services spell out the five key principles of the MCA.

But we also hear from people who aren’t at the moment using health and social care services, but who have planned for the future. People who have given their loved ones the power to make decisions for them should they lose capacity, by means of a Lasting Power of Attorney; and those who have done an Advance Decision to Refuse Treatment, so that they are in control of their medical care, up to and including the end of their life.

Properly implementing the MCA can sometimes take time – to get to know someone well enough to make a best interests decision on their behalf; to wait for someone to regain the capacity to make a decision for themselves; to fully support someone to make their own mind up. And time sometimes feels like a scarce commodity in busy services. But we hope that ‘Using the MCA’ will help remind people what they have a right to expect, and what they can do to make sure they stay in control. I’m going to insist that my friend watches this one.

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  1. Comment by Pearl Baker posted on

    Hugh i have been in contact with you for months if not years regarding my concerns for those who have been placed into the COP for 'Property and Finance' while being subject to section 117 of the 1983 MHA. The OPG do NOT have copies of their 'Care Plan' or made aware they are subject to Section 1217 (free aftercare). this has been established by their correspondence.

    We now have a situation where the above patients have no personal Budget ie the MCA2005 code of practice, and many have been discharged from 'Care Plan's including section 117, leading to inappropriate charging. ie the High Court case 'Stennett', ignored, and indeed the Care Act 2014 referring to section 117 patients.

    I am an 'expert by experience' as a Carer with a personal experience of the above.

    It is well overdue that organisations like the SCIE took on board my evidence (provided in part by the OPG itself) LA and the GPS. My meeting with the CQC has come about by my (evidence) regarding GP Inspections..

  2. Comment by Stephen Wey posted on

    Glad you have a new film about this because the previous one (with several Eastenders cast members) had so much in it that was at odds with what the act should be about. It was so bad I was actually showing it as an example of how not to apply the act.

  3. Comment by The Mother posted on

    When are you going to focus on the abuse of the MCA? Abuse of the MCA needs addressing urgently - local authorities and hospitals abusing the act to impose their opinions and choices on disabled people and their families - manipulated and fraudulent assessments resulting in people who don't lack capacity being labelled as lacking capacity in order for officialdom to seek control of their lives and medical care. My daughter was nearly subjected to a surgical procedure that she didn't want, didn't need and was downright dangerous for her. This came about because of a plan hatched by people with no clinical knowledge or understanding of the risks - yet the same people had actively sought to prevent her from accessing healt care she needed! She only escaped the surgical procedure because the hospital made the right decision - albeit for the wrong reasons - that their backs weren't covered if anything went wrong! The act isn't fit for purpose and whilst it continues to be abused by unscrupulous employees of the state nobody is safe!

  4. Comment by P Wrest posted on

    I am an Independent Mental Capasity Advocate (IMCA) & Deprevation of Liberty Safeguard (DoLS) Practitioner. I am shocked and disappointed by the number of Social Workers & Care Managers, AMPS & Local Authority Safeguarding teams, staff at Supervisory Bodies & Managers & staff of care homes, Doctors & Dentists, who do not know enough about the MCA, or do not use it correctly, to the detriment of my clients.

    • Replies to P Wrest>

      Comment by Hugh Constant posted on

      We hope the film will go some small way to tackle that, but we recognise it's a huge challenge.

  5. Comment by Elizabeth posted on

    My son as been using oxygen for years he suffers chronic pain,neck spasms and cluster headaches, ...out of the blue respiratory nurse cancelled him getting it because we missed an appointment ....who are they to play God with peoples quality of life..
    When I ask my gp about it he fobs me off , oxygen helped my son a lot and I would like help to get that bit of comfort back in his painfull life

  6. Comment by sue posted on

    Could I please take the liberty of pointing out a major flaw with this video? In promoting the Mental Capacity Act as "an act for everyone", a view with which I totally agree, the absence of subtitling on the video precludes all those who experience hearing loss from benefiting from the message. From the outset, therefore, it is not accessible to "everyone" which I believe very strongly is an extremely fundamental error. Please could this be addressed and the video re-launched with subtitles added to ensure it the message can be accessed by "everyone"? After all, many of the very people who may need to receive this message may well be living with hearing loss and the absence as something as simple as subtitles is almost unforgivable when connected with something this important. Hopefully this absence is due only to an oversight by people lacking insight into the needs of hearing disabled people, and is not in any way indicative of discriminatory or otherwise excluding intent?

    • Replies to sue>

      Comment by Hugh Constant posted on

      Sue - hello. I organised the film at SCIE's end - it does have subtitles. In the bar of icons at the bottom of the screen, there are four icons to the bottom right: one that goes to full screen, one that says You Tube; one that looks like a wheel; and the fourth one is the subtitle button. I hope that helps. Hugh