Whenever I am in a social work training session, it doesn’t take long before this question comes up:
“What happens if someone doesn’t have capacity?”
Every aspect of social workers’ practice with people becomes complex when there is a question about the person’s ability to make a decision. The world is set up for us to be autonomous decision makers. Making decisions in your own life is key to human rights: the Universal Declaration of Human Rights says that all human beings are born free and equal in dignity; that includes equal in decision making. Being suspected of not having capacity to make a decision immediately poses a threat to a person’s freedom and equity.
The social worker’s role
1.Supporting decision making
Legal capacity is an essential part of what it means to be human. Social workers must, therefore, understand how to maximise supported decision-making.
The United Nations Convention on Rights of Persons with Disabilities requires States to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” (Article 12(3)). This is the ethos of the Care Act 2014 and Mental Capacity Act 2005 as well – that social workers should do all that they reasonably can to support someone’s own decision making before substitute decision making is considered.
2.Substitute decision making
Substitute decision making is where another person has the legal authority to make a decision for a person. Social workers need to understand when and how another person, including themselves, can legally undertake substitute decision-making. They need to be able to work through the legal process, step by step, upholding the person’s rights at during each process.
For local authority practitioners, legal literacy in this area includes:
- Informing people of their rights, for example, an entitlement to an assessment;
- Involving people fully in every aspect of the social care process;
- Upholding their right to an advocate for key areas of decision making, such as care and support planning, if they face substantial barriers or if there is no suitable person to support them;
- Ensuring that they have the appropriate information to make a decision on what the local authority can offer; and
- Always being aware to the potential need to use the Mental Capacity Act 2005 to work through a situation where a person may not have capacity to make a specific decision.
3. Determining capacity
The Mental Capacity Act 2005 and its Code of Practice provide essential protection to ensure people remain in charge of their own lives when it is suspected that they may not be able to make a decision. Without this protection, others could undermine a person’s humanity by imposing decisions that they, as a unique person, would not or may not have made.
The Mental Capacity Act 2005 is grounded in the principles that:
- A person must be assumed to have capacity and must be supported to retain capacity to make decisions up to the point where it is evidenced that they lack capacity for that particular decision, at that particular time and
- If a decision then needs to be made on their behalf, this must be made in the person’s best interests.
The Mental Capacity Act’s principles also rule out paternalistic intervention to stop someone who has capacity from doing something that seems unwise to others and over-protection that ends up restricting rights and freedom unnecessarily.
A judgment about someone’s capacity to make a particular decision requires careful consideration about:
- Whether the person has an impairment of the mind or brain or some sort of disturbance affecting the way their mind or brain works; and
- If so, whether that impairment or disturbance means that the person is unable to make the decision in question at the time it needs to be made; that is, are they unable to either understand information about the decision, retain this information, weigh it up or communicate their decision.
Again, the principles rule out stereotyping or assumptions about someone’s decision making ability based on the person’s age, appearance, condition or behaviour.
These principles and the process that flows from them guard against opinion-based judgments and lead to a careful and thorough determination of mental capacity that is specific to the person, the time and the decision. It is only when it is evidenced that someone lacks capacity that steps can be taken to make a decision on the person’s behalf and in their best interests.
4. Issues with applying the MCA and how to avoid them
- Even with the law and code in place, social workers should be exhaustively careful. Complaints to the Ombudsman show recurring problems with how capacity is considered:
- Regardless of mental capacity, local authorities should fail to capture the person’s wishes or ensure their involvement.
- Supported decision-making may not be undertaken effectively; for example, friends and family are not involved, or advocacy is not provided.
- Assessment of capacity may not happen or may not lead to a clear decision that is then acted upon.
- Safeguarding reports also highlight huge issues in how local authorities establish whether people at risk are able to make a decision about protecting themselves or not. An analysis of Safeguarding Adult Reviews (the report) highlighted poor attention to mental capacity as a factor in over half of cases. Issues included:
- Failure to assess mental capacity.
- Assumptions of capacity, despite indicators of barriers to decision making such as addiction or coercion.
- The “incorrect belief” that the Mental Capacity Act 2005 gives adults the ‘right’ to make unwise decisions
- Failure to appoint an Independent Mental Capacity Advocate.
The report emphasised the need for social workers (and others) to:
- have capability and confidence in applying the Mental Capacity Act 2005 and Code of Practice.
- Have supportive preparation to build up the expertise in working through situations where capacity might be difficult to determine, including where someone might be expressing intentions that they did not have the executive capacity to follow through or where there might be coercion or trauma preventing people from acting.
- to develop capability in recording their application of the law. And finally,
- to have the capability to make decisions in someone’s best interests, when this was required.
An example from a Thematic Safeguarding Adults Review on Self-neglect in one local authority area highlights the importance of legal literacy around capacity.
This looked at the deaths of six people in 2019-2020 who had died in circumstances amounting to self-neglect. Shortcomings around mental capacity were found in five of the cases.
BB’s case:
- In one situation, BB, aged 79, was found deceased at her home in December 2019 after an accident involving fire. For several years, her alcohol use had brought her to the attention of social care services, health and emergency services.
- BB received support including hospital treatment, a short-term care home placement and support at home.
- In October 2019 the agency providing support at home raised concerns about ongoing risks from self-neglect and use of alcohol, and fire hazards. They advised Adult Social Care that they intended to raise a safeguarding concern but were told this wasn’t necessary.
- There was no assessment of capacity. Social care workers did not see any reason not to assume capacity, and the community psychiatric nurse advised that BB had capacity and that a full assessment was not warranted. There was only one occasion when there appeared to be a discussion with BB about her decision-making and possible loss of executive function was not considered.
Social workers need a confident grasp of the legal principles and processes: the Mental Capacity Act 2005 as a cornerstone of practice.
How can we help
We are specialists in providing legal and social care training. We are running a course providing practical skilled training on Applying the Mental Capacity Act 2005 in Practice for social workers, if interested further information is here https://www.kingsleyknight.co.uk/training/applying-the-mental-capacity-act/
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Disclaimer: The contents of this guide are for information and are not intended to be relied upon as legal advice