Lawful decision-making under the Mental Capacity Act 2005 – a challenge for the sector as a whole

Although the Mental Capacity Act 2005 (MCA) has been in force for over five years, its practical implementation in hospitals and community settings is yet to be broadly established. Particular concerns exist in relation to the complex issues of cardiopulmonary resuscitation and covert medication. However, the MCA applies to all aspects of the care and treatment of incapacitated adults.

On 17 October 2012, Ridouts hosted a symposium in central London of leading providers and policy makers to discuss the challenges faced by the sector around compliance with the MCA. As well as speakers from Ridouts, there were representatives from the Department of Health, the Care Quality Commission and the Social Care Institute for Excellence who provided their informed views on how the sector should respond to MCA compliance now and in the years ahead.

In this edition of the Ridout Report, we capture some of the key issues that emerged from the symposium.

Assessing capacity

Although the MCA requires those providing care to assess a person’s capacity to take a specific decision, or a decision of a specific nature, that does not mean providers have to assess capacity twenty or thirty times a day.  What it means is that capacity assessments should be undertaken in the context of developing (and keeping under review) excellent care plans.  The speaker from the Department of Health stressed the importance of developing life stories for each person receiving care services as a way of furthering a person centred approach to care planning and fulfilling the spirit of the MCA.

The Court of Protection has handed down some important judgements on capacity in 2012.  Mr Justice Hedley in the case of NYC v PC and PC (July 2012) considered the approach to the assessment of capacity under the MCA. He acknowledged that sometimes the decision in question is generic.  For example, can the person make any decision in relation to their care on account of the degree of their dementia?  However, other decisions may be specific in nature – for example, relating to a particular type of treatment.  Additionally, one may also need to consider the specific circumstances prevailing at the time the decision-making capacity of the person is called into question; their capacity, for whatever reason, may fluctuate.

Best interests decisions

What many providers may not know is that since June 2012 the best interests’ checklist set out in section 4 of the MCA, has now been directly incorporated into Regulation 18 (consent to treatment) of the Regulated Activities Regulations that are enforced by CQC.  Therefore, one can expect CQC to focus ever more rigorously on MCA compliance through its inspection and enforcement functions. For example, in the event of continuing non-compliance with the MCA requirements, CQC might serve a warning notice on a provider around, for example, training.

It should be remembered that the CQC guidance for providers on MCA compliance states that compliance inspectors can go up to care workers and ask them what they know about the best interests’ checklist under section 4 of the MCA. This highlights the importance of training staff on the MCA but in a practical way that they can then apply to their everyday practice.

The “Next of Kin” issue

In hospitals, next of kin are often asked to sign consent forms for people who may or may not have capacity. However, the point is that next of kin have no legal right to consent on behalf of someone with or without capacity.  Providers should be following the legal requirements under the MCA for adults who may be incapacitated. The speaker from the Social Care Institute for Excellence felt that the phrase “next of kin” should be abolished. Instead, people should be asked who they would like the service to contact if they become ill. This could include friends or advocates, not just family.

Advance decisions to refuse specific treatment

A concern raised by several providers at the symposium was a knowledge deficit on the part of some GPs in relation to the legal effect of a valid advance decision.  Such a decision is binding if it covers the particular circumstances in question however examples were given of GPs seeking to override valid advance decisions. There were also concerns expressed about the difficulty in getting GPs to engage in end of life decisions, particularly around Do Not Attempt to Resuscitate Orders. At Ridouts, we have come across cases where GPs have gone into residential homes and placed DNAR Orders on the files of multiple residents without going through a proper best interests’ process.

Conclusion

The issue of MCA compliance is not going away.  Providers are leaving themselves open to a range of civil and criminal liabilities in the event of non-compliance.

Over the last year, wide ranging failures on the part of NHS and private hospitals and care homes to comply with the requirements of the MCA have been identified, particularly in the context of DNAR decision-making.  One NHS Trust was the subject of rebuke by CQC for a failure to show that best interests meetings had taken place with regard to DNAR decisions. Similarly, the Serious Case Review into Winterbourne View highlighted the failure to ensure that the legislative safeguards under the MCA were upheld in relation to informal patients within that setting.

There is a huge training need across the whole health and social sector in relation to the MCA, particularly in the primary care arena.  Additionally, there is also a need to ensure policies and procedures around the MCA are intelligible to staff and promote compliance with the MCA. We have seen a number of MCA policies that do not comply with the requirements of the MCA in relation to capacity assessments and best interests’ decision-making.

The consensus at the symposium was that the MCA provides an excellent framework for the delivery quality services to people who lack capacity.  Providers will be faced with huge challenges in caring for ever increasing numbers of incapacitated adults over the next 10-20 years. The question is how are providers going to adapt their services to these changes to ensure they are centres of excellence in terms of meeting the requirements of the MCA?

If you are concerned about MCA compliance within your services, please feel free to contact us.

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