https://socialcare.blog.gov.uk/2016/07/22/dignity-safety-liberty-watchwords-for-the-mental-capacity-act/

Dignity, safety, liberty - watchwords for the Mental Capacity Act

When the Mental Capacity Act 2005 came into force, it did so to bolster protection and empowerment for individuals who lack the capacity to make decisions about their own care and treatment and to help others plan ahead for when they may find themselves in a similar position. In her debut blog for Social Care News, Chair of the National Mental Capacity Forum, Baroness Finlay explains why greater awareness of the Act remains vital to its effectiveness.

Baroness Finlay: 'Any care decisions must be taken with a view to preserving dignity, safety and liberty.'
Baroness Finlay: 'Any care decisions must be taken with a view to preserving dignity, safety and liberty.'

The Act places an enhanced duty of care on a range of health and care professions – including clinicians, social workers, carers and care providers - to pay full and respectful attention to a person’s wishes and to consider carefully what is in their best interests.

Any care decisions must be taken with a view to preserving their dignity, safety and liberty as much as individual circumstances allow. And even if that person is deemed unable to make their own decisions, they must still be an active participant, as far as possible, in processes intended to keep them safe and healthy.

The Act’s creation was – and continues to be – a good thing. But all the legislative frameworks, obligations and guidance in the world mean nothing if the principles and ways of putting them into practice are not shared or communicated properly. Ambiguity can only undermine the confidence of those who wish to serve the best interests of others and may delay or degrade a positive outcome.

Since the creation of the National Mental Capacity Forum and our first Action Day earlier this year, I’ve attended many meetings and events which have underlined in my mind why greater understanding and awareness of the Act remains crucial.
hand gfx croppedFirstly, the principles of the Act must be spelt out more clearly. I’m particularly impressed with this handprint graphic from Shropshire Council which serves as a visual aid for anyone unsure of their obligations. If nothing else, it prompts colleagues to remember that a lack of capacity cannot be attributed automatically to someone, just because a decision they make appears to be unwise.

Secondly, unpaid or informal carers have spoken to me of their frustration at not being consulted by health and care professionals as a matter of course. As the people arguably closest to the individuals being cared for, their insights and concerns must always be considered.

On this point, the soon to close call for evidence, currently being run by the Department of Health, is seeking the views and concerns of unpaid carers in support of a new National Carers Strategy. In a nutshell, it is about making sure carers are supported to look after their own health and wellbeing, to allow them to continue to care well for others.

When it comes to matters of mental capacity, carers should feel that their voice is being properly heard in decisions about those they care for. What they know about their loved ones’ needs and wants should be taken into account. If you haven’t already contributed, can I urge you to do so. The last day for submissions is 31 July.

And finally, more needs to be done to promote and explain legal and financial processes such as Lasting Power of Attorney (LPA). It is vital people understand their responsibilities when seeking and executing LPAs. The Office of the Public Guardian website features some useful guidance, which can only help to raise awareness and promote their proper use.

Meanwhile, the work goes on to raise awareness of the MCA. If you haven’t seen it already, can I recommend you view this excellent short film hosted by the Social Care Institute of Excellence which, like Shropshire Council's graphic, does a great job of explaining the Act’s principles clearly and in context.

I look forward to sharing more insights and updates with you soon.

7 comments

  1. Comment by Pearl baker posted on

    The Problem with the MCA 2005 is that it is not sufficiently 'MONITORED' by the OPG. If their client is subject to a 'Property and Finance' order including Section 117 of the 1983 MHA they currently have no 'data' of this on their clients Record?

    LA have little money and currently charging for services that would come under Section 117 (free aftercare).

    LA Deputies are currently (issuing order) to GP and others outside their Remit under a 'Property and Finance' order. causing serious 'safeguarding issues'. example NOT to speak to Carers, who are currently involved in their 'Health and Social Care' No Independent Advocate are provided to the group i speak of above.

    I have been invited to join a 'focus group' and 'case study group' where hopefully my 30 years experience will highlight the problem areas

    • Replies to Pearl baker>

      Comment by emma turner posted on

      Anxity is hard enough in the day, never mind in the night too.
      borderline personality disorder is like a pick a mixs sweets, you just don't know what you are going to get. everyday is a stuggle: find it very hard to make and keep stable relationships, don't have a strong sense of who you are, psychotic experiences, thinking your a bad person, paranoid, struggle to control your anger. suicidal thoughts or self-harming, Emotional Ups and Downs, feelings of emptiness, loneliness evan if people are around (you me) self-image, physically clinging to others, one mintute you (I) can love to hate someone very fast, but still need them at the same time. Feeling emotionally dead inside, trying to fit in but your just not good enough in constant pain of worry, anxity. And the worset part is you cant control it, and it makes it evan harder when people don't understand. And all they do is judge, and look down on you like you don't belong, or dont matter.or you have lost your mind, I just think if mental health team come together and open up groups for family's and friends (anyone) for that matter so they can understand what its like for us and for them to support us through are recover. That’s why i made the pertiton so please everyone take a mintute to read and sign just think of everyone you could help if this was in place, to many people judging mental health it’s a night mare to live with i know.how it feels. So please share and sign thank you

  2. Comment by Bob Skinner posted on

    Remember best interest decisions may not always mean the safest decision. some individuals have been supported by the courts to die rather than maintain life.

  3. Comment by Dan posted on

    My Adult LD and Autistic son lacks capacity in all areas but, the Authority forced him from his safe Family Home, stopped him from coming back home and seeing us. He was then assessed by an Independent Psychiatrist who concluded that he lacks capacity in all areas and cannot gain capacity. They then refuted his accurate findings and then carried out another assessment by a SW and an NHS Psychiatrist which now states "he has capacity to decide where to live and who he see" and since that WE HAVE NOT SEEN HIM AGAIN AND WE NEVER WILL.
    They are saying he has made that decision while, we have the evidence that "They are making this decision and preventing contact {as he will escape back home as he did a few years ago}.
    Is that what the MCA represents? Doesn't we and him a 'Respect and Right to A Family Life'?

    • Replies to Dan>

      Comment by Christine mayor posted on

      Terrible reading this my heart goes out to you

  4. Comment by Chris Brennan posted on

    Of course the Mental Capacity Act is a good thing and reminds health care professionals to treat everyone with dignity and respect. I work in the field of leaning disabilities and specifically with people who may have offended. I do have concern around how capacity assessments are carried out. We have to remember that for people who we judge to lack capacity they may suffer loss of liberty. For most of us only a due process of law and the courts could deprive us. In the case of someone mentally ill and a serious danger to themselves or others they may be detained after assess meant by 2 section 12 doctors and another approved mental health practitioner. It appears that the bar for relinquishing someones freedoms under the MCA is not as high. As a result I have seen assessments that over estimate capacity and so leave individuals and the public at risk of serious harm. I am not sure that the training of best interests assessors is adequate or rigorous enough.

  5. Comment by Frank posted on

    We have had an experience where the so called professionals refused to listen to what our Aunt wanted and kept saying the Professionals and so called best interest people were making the decisions for our Aunt.
    This is a comple case but a nephew, Aunty had no children, managed to get Aunty to have control over her. This started OK and we weren't aware of AUNTYS problems. When we did find out it was to late for us to alter anything.
    Aunty wanted to go home and when she was diagnosed with terminal illness she wanted to go home to die. We were prepared to move in with Aunty in her own home or if not in our house.
    We asked social services about this but that were aderment it was best for Aunty to go into a nursing home even though AUNTY WANTED TO GO HOME.
    Aunty did have medical problems and vascular dementia, we couldn'tt beat the system, in fact we were told by social services we only visited Aunty every day in hospital for pie own purpose.
    The nephew, who managed to make Aunty sign a Power of Atteerny for property and finances for him to have control. He also managed to get Aunty to change her will so he was the executor to her will. This was done on 16 January 2015 and Aunty we pas deemed unable to make her own mind up in February 2015. Also the power of Atererny was started in January, not sure if you have ever read the 40 pages for this and granted in April. We looked at the application from and it would take us all our effort to understand the forms.
    Anyway Aunrty told us a lot of what went on and she was sorry what she had done. We explained it would be nearly impossible for us to alter anything but we would try and try to to Aunty home to die.
    We helped look after Aunty in hospital for 56 days along with my brother and his wife. The nephew then managed, he worked some social services mental health, somehow to persuade social apservices we were Pscholigicaly abusing Aunty to make ask to go home and we were stopped seeing Aunty for 20 weeks.
    This is a complicated and yet simple case, the nephew got greedy and convinced everyone we were there for AUNTYS money and property. We never had any face to face talk with the safeguard personal and in the end we were allowed to visit Aunty after 20 weeks by this time Aunty was deteriating and died 24 December.
    We presumed this case with the ombudsman but they are only concerned all the paper work and the so called system was followed, which it was.
    We have managed to ask for information under the freedom of information act from Essex County Council and we can see clearly there have been lies told about us and we were classed as the bad people. We are trying to recifiy this but can only go so far,
    . We aren't able to see all of AUNTYS notes. We told social services we had evidence the nephew had control dope Aunty and he wasn't going to let go. It's been such a sad sad case where no one in our opinion was bothered to carry out AUNTYS wishes or show any compassion for Aunty. Yes they followed all the rules but they lost ant compassion fir AUNTYS wish to go to die.
    If you are interested in this case or could offer us some guidance than please contact us at frankspall@hotmail.co.uk.
    Thanks