The Mental Capacity Act – are we there yet?
‘But are we there yet?’ asked the numerous Mental Capacity Act (MCA)/Deprivation of Liberty Safeguard (DoLS) Leads at the Local Implementation Group (LIN), which has been operational since 2007.
‘Ten years on, are we there yet, are we doing it right?’
Some shook their heads. Reasons were given for why it might not be working: ‘they just don’t understand it’; ‘it’s the paperwork’; ‘it’s the time it takes’; ‘DoLS has eclipsed MCA’; ‘we need more training’. I have heard these statements repeated at different meetings over time. I have heard these issues debated in depth. With this in mind, the discussions at the LIN as we approached the tenth anniversary of the Mental Capacity Act (MCA) made me reflect on our own journey over the last ten years, where we started, where we are now and where we might need to go next.
The MCA ‘was designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment.’ (Source: NHS)
As such, it recognises and celebrates autonomy of the individual and is the ‘go to’ statute for anyone working in social care. It has changed the face of how we, as agents of the state, support individuals to make both complex and non-complex decisions.
Within the last decade there has been a tangible shift from how we applied common law and who applied it. I recall a colleague who worked as a psychiatrist sitting next to me in our co-located office, and how delighted he was that he would no longer be the sole owner of decision-making and assessing capacity. Whilst it was in many ways daunting to take on these responsibilities, my colleagues and I applauded the clarity the MCA gave us. Although it was a shift in dynamics and roles, it clearly gave us professional responsibility in whatever profession we played, be it social work, nursing or another allied profession. Within our locality plans were drawn up for how it would work, training was planned, and roles were being developed. There were briefings, presentations workshops, and a feeling of excitement mixed with trepidation.
Trepidation? Yes. We were worried that we would get it wrong, that we weren’t really skilled or knowledgeable enough to undertake these assessments. I was responsible for carrying out Gateshead Council’s first MCA assessment. It was complex and difficult with mixed views and objections. But when I was asked by a well-meaning manager whether I felt vulnerable (in case I needed more support), my answer was ‘no’. Instead of feeling overwhelmed by a sense of the huge responsibility, I felt empowered that the work I was undertaking was supporting a man to have his views and wishes listened to, regardless of threats from family (to the local paper), tears (mine), and endless reading of the Code of Practice. It demonstrated how the law could work, not just to defend decision-making but also to put the individual at the centre of how those decisions were made, rather than only relying on what professionals thought was ‘best’ for them. At last we had a framework to guide these decisions and provide a legal steer aimed at protecting both the individual and professional.
I would like to think that the decision to embrace the MCA from the outset established Gateshead’s blueprint for good practice which has carried across the last decade. Our first and subsequent MCA leads have all made their impressions on practice in Gateshead by working closely with all staff in all departments, including provider services, voluntary sector, advocacy services, Adults’ Services, commissioning services, and Children’s Services. These close working relationships with our colleagues have resulted in some excellent work being undertaken.
Good working relationships with multi-agency colleagues enable collaborative approaches to embed knowledge sharing and exemplary practice. A recent case involved a lady who was assessed as lacking capacity, however open communication with all involved – including family – alongside an up to date assessment, led to the conclusion that the capacity to make decisions had been optimised and there was no requirement for DoLS.
Our frontline colleagues are committed to ensuring that all those they work with are safeguarded through using the MCA, sometimes amidst strongly differing opinions. By ensuring supported decision-making is at the heart of their interventions they have been able to challenge negative assumptions and stereotypes, allowing self-determination and minimising the need for state intervention.
We also work closely with our commissioned providers to support the ongoing education and development of their services, which in turn supports local residents who receive these services. By investing in this and working together we achieve a greater mutual understanding and better environments.
As an authority we are actively involved in working groups regionally and nationally to bring new ideas and innovation to our local area. These working groups are crucial to support knowledge sharing and good practice across our own and other organisations.
We also approached the Local Government Association and asked them to undertake a MCA DoLS Peer Challenge – the first of its kind – to look at what we had done to promote and implement this key area of work. This was well received. Areas of improvement were identified as were strengths, such as ‘the impressive level of knowledge, commitment and passion of the frontline staff. This is a real strength and the Council should ensure that this is maintained’.
I know that we’re not perfect, and that there is still room for development and improvement. Sometimes it feels like a huge task, but when I see people shaking their heads and saying that we’re not nearly there yet, I think that it’s important to reflect on how far we’ve come, look at where things have gone well and build on them, and look where things could be better and work on them.
About the author
Mel Bramwell is Strategic Lead for MCA/DoLS within Gateshead, and has worked for Gateshead for 20 years in a variety of roles, including Social Worker, Team Manager, Senior Practitioner, AMHP and Best Interests Assessor.