The 5 Principles of the MCA are well applied by social workers because they chime with our professional values. The Principles instruct us to be anti-discriminatory, to enable self-determination and to respect non-conformity. And that’s just the first three Principles! Social workers everywhere apply them to gain consent before every bit of intervention.
That the Act has not been fully understood and implemented across health and social care was one of the findings of the Select Committee’s post-legislative scrutiny in 2014. It is now getting on for ten years since the Act came into force yet we are still talking about some professionals not understanding the Act or not being aware of it. This is not acceptable. We are talking about a person’s legal rights being ignored by public servants.
Sometimes it is not that a professional is unaware of MCA but that they want to achieve a particular outcome, one determined without the person being involved at all.
I have been challenged many times about the findings of capacity assessments but on every single occasion it was where I had concluded that the person had the mental capacity to make the decision, never when the person didn’t have capacity. On those occasions they agreed with me. The same occurs when a woman with dementia agrees with the professional who says she should go in a care home; she has capacity. But if she disagrees with the professional… You know the rest.
Apart from upholding a person’s human rights and enabling autonomy, issues which trump any professional opinion about what is right or wrong for someone (otherwise people would never smoke cigarettes or drink alcohol!) there is also the small matter of professional respect. Last week I was stood next to a social worker on the phone, listening to her trying to explain to a nurse how she had enabled a person with dementia to make the decision to return home. The social worker didn’t say much and even from where I was standing, I could hear the nurse losing her temper until eventually the social worker looked up and me and said, “She just hung up on me.”
Can you imagine a social worker approaching a nurse on a ward and criticising her skills at assessing wounds or inserting an intravenous cannula? Or how about a social worker telling an occupational therapist that his stairs assessment was wrong? Social workers are not trained or qualified to complete these tasks and would be absolutely wrong to not give the professional respect our colleagues have earned. Even in the unlikely event they were present when those tasks or assessments were being completed, they would still not comment. And yet every week I hear from social workers who say that other professionals criticise their mental capacity assessments. Nearly always the other professional is not present so does not see what techniques the social worker applied in enabling the person to make the decision. It is not a bad idea to have others present so they can learn, but it is not always appropriate. But either way, it is shameful that one professional should feel able to openly criticise another, for example in an MDT meeting, about their professional conduct. And yet some do so without providing any evidence to show that they have also tried their best to enable the person to make the decision without success or without referring to what the 2005 Act actually says about identifying the decision maker.
So why do some professionals want the person to lack the mental capacity to make the decision? I have sometimes sidestepped these disagreements about capacity and instead suggested we imagine for a moment the person doesn’t have the capacity to decide. Then what? Because therein lies the reason. A capacity assessment which concludes the person cannot make the decision provides a means by which the person can be forced into what is perceived by the professional to be a less risky situation, even though it is against the person’s wishes and will make them unhappy. It is to use the MCA against the person.
Sometimes the professional says they have a duty of care towards the person, or it may be they are under pressure from family members or other colleagues for a particular outcome, or because a permanent move to a care home (for example) means a faster discharge from hospital or from a short stay placement. But more commonly it is because the professional doesn’t want to get into trouble; it is easier to prove a person suffered broken bones than a broken heart.
None of those reasons are in the person’s best interests. They are in the interests of other people.
Social workers have to be strong to resist these pressures but what can they do?
In my Local Authority we have, every week, an MCA Clinic and a Risk Enablement Panel, both of which provide support for social workers, often isolated in trying to uphold the human rights of the person. At the MCA Clinic, social workers can bring their MCA related queries, including their assessments for analysis, and are provided with written guidance. At Risk Enablement Panel the social worker gets management sign-off for a non-risk averse decision to be made for an incapacitous person, one which respects the person’s known wishes and feelings, is in the person’s best interests and is the least restrictive option. The person is of course encouraged to attend and we have a discussion about the consequences of one decision over another.
Why MCA? Until 2007 social workers with adults lacked the legislative backing with which to challenge oppressive practice and promote independence. Championing the Mental Capacity Act has become the raison d’être for social work with adults.
Edited from original in Community Care http://www.communitycare.co.uk/2016/03/14/social-workers-can-resist-risk-averse-practice-uphold-human-rights/
See also in Community Care http://www.communitycare.co.uk/2014/09/12/welcome-supreme-court-ruling-enshrines-social-work-values-law/