This section sets out the responsibilities of providers and commissioners. It introduces the MCA as a framework for promoting human rights, choice and control.
Understand your legal obligations
Where do human rights begin?
In small places, close to home – so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person…
Eleanor Roosevelt, 1958
Embedding the principles of the MCA within care planning means the world of the individual person is one in which their rights are respected. The MCA provides a framework for empowering people to make their own decisions and for others to make decisions that are in their best interests when they are unable to do so. These decisions may range from small everyday matters such as what to wear and what to eat, to more complex decisions such as where to live or what medical treatment to receive. The MCA safeguards people’s human rights and the choices they wish to make.
The MCA makes it clear who can make decisions on behalf of a person who lacks capacity to do so, when they can do this, and the safeguards that must be followed. It also enables people with capacity to plan for a time in the future when they may lack capacity.
Everyone working with, or providing care and support for, a person over 16 years of age, who may lack capacity to make decisions for themselves, is required by law to understand and use the MCA. They must also have regard to the MCA Code of Practice (the Code), [2] and the Deprivation of Liberty Safeguards (DoLS), an amendment to the MCA introduced in 2009 via the Mental Health Act 2007. [3]
Providers should be able to demonstrate to commissioners how they are meeting these statutory obligations through their care planning processes and practice.
Around two million people are thought to lack capacity to make decisions about their care and support . [4] Despite the fact that the MCA was implemented many years ago, evidence from research tells us that it is still not well understood by staff working in health and social care.
The MCA 2005 Select Committee
The House of Lords Select Committee, established to scrutinise how the MCA is working in practice, published a report in March 2014. [5] It found that although the MCA ‘continues to be held in high regard’, it has not met the ‘high expectations it raised’, due to a lack of awareness and understanding, a persistent culture of paternalism in health services, and aversion to risk in social care.
The Care Quality Commission’s report on the use of the Deprivation of Liberty Safeguards
Similarly, the Care Quality Commission (CQC) found in 2014 that the MCA was not well understood across all sectors. [6] The Commission’s evidence showed that in some care homes (and hospitals), people’s freedom to make decisions for themselves was restricted without proper consideration of their ability to consent or refuse. The Commission called upon both providers and commissioners to improve in this area.
The Care Act 2014
The statutory obligation contained in the Care Act 2014, to promote individual wellbeing, sets the future direction of social care. This means that care planning must focus on achieving change for people and not just their safety.
The Care Act recognises the importance of ‘beginning with the assumption that the person is best-placed to judge their situation’. It places a duty on local authorities to make sure that:
- the person participates as fully as possible in decisions and is given the information and support necessary to enable them to participate
- decisions are made having regard to all the individual’s circumstances (and are not based only on the individual’s age or appearance or other condition or behaviour)
- any restriction on the individual’s rights or freedom of action is kept to the minimum necessary for achieving the purpose.
The principles that underpin the MCA mirror these duties. The MCA places the person at the heart of decision-making. Providers must show through their care plans and associated records how people are supported to stay in control of their lives and to make their own decisions about how their care and support is provided as far as they are able.
The five principles of the MCA
The law recognises that each person is unique and will have a different lifestyle and aspirations for their care and support. To reflect this diversity, the MCA is underpinned by five key principles which enable a flexible approach to decision-making. When staff use these principles well, they empower people to make their own decisions and protect and empower those who lack capacity to do so. The five principles are:
- a person must be assumed to have capacity unless there is evidence to establish that they lack capacity
- a person is not to be treated as unable to make a decision for themselves unless all practical steps have been taken to help them make it, without success
- a person is not to be treated as unable to make a decision merely because they make an unwise or eccentric decision
- an act done, or decision made, for or on behalf of a person who lacks capacity must be done, or made, in their best interests
- options should be sought that are the least restrictive of the person’s rights and freedoms and that will meet their need.
The principles applied to care and support planning
Principle 1: assume capacity unless there is evidence otherwise. A person who has capacity has a right to make their own decisions without interference from others. Assuming capacity, therefore, means starting from the premise that a person has capacity to make their own decisions about their care and support. It should never be assumed that a person lacks capacity solely because of their age or medical condition.
Mental capacity is ‘decision-specific’. A person may have capacity to make decisions about some aspects of their care and support and not others. Care providers must obtain consent to each element of the care plan where the person is able to give it (consent is considered in more detail in the section Care planning, liberty and autonomy). For example, the person may be able to make their own decisions in relation to their personal care, but not about their finances.
When providing care and support, staff should consider whether the person has the capacity to make the specific decision at the time that it needs to be made. Asking this question protects the person from blanket assumptions of a lack of capacity.
What to look for in the care and support plan and other records
- Evidence of the person’s informed consent to their care and support; or
- Evidence of why the person was assessed as lacking the capacity to consent.
Principle 2: do not treat a person as unable to make a decision unless you have done all you practically can to help them reach that decision. It would be unlawful to say that a person lacks capacity if you have not tried to support them to make a given decision. We all need advice and support at different times of our lives, for example, when buying a house or making complex financial decisions. If we seek advice we want information conveyed to us in a way that we are able to understand to help us reach our own decision. This applies equally to people in need of care and support.
Before concluding that a person lacks capacity, care staff must do all they reasonably can to help them understand the choices they have about their care and support (this is discussed further in the section Care planning, involvement and person-centred care). By maximising a person’s capacity, they are empowered to maintain control as far as they are able, and unnecessary interventions in their lives can be avoided.
What to look for in the care and support plan and other records
- A description of any special communication needs.
- How the person is supported to understand and be involved in decisions about their care and support. This includes the nature of the decision, the options available and the consequences of each decision.
Principle 3: unwise or eccentric decisions don’t of themselves prove lack of capacity. Choices are influenced by an individual’s values, preferences and lifestyle. Staff must not impose their values on people for whom they provide care and support. Everyone has a right to pursue choices that others may consider unwise – for example, eating unhealthy foods, engaging in dangerous sports, buying lottery tickets, etc. This right does not diminish simply because a person uses care services. A person is not to be treated as unable to make a decision merely because this decision is considered unwise.
What to look for in the care and support plan and other records
- Information about what is important to that person, their wishes and preferences.
- What the person would like to achieve from their care and support.
- A person’s social history, including any key events or achievements.
- If the person appears to lack capacity to make a specific decision for themselves at the time it needs to be made, an assessment of capacity should be made in relation to that particular decision.
Principle 4: if you are making a decision for, or acting on behalf of, a person who lacks capacity, you must do so in their best interests. The ‘best interests’ principle only applies if the person is unable to make the decision after being given all necessary support (see Principle 2). With the best intentions, care providers may on occasion act or make a decision that they consider to be in a person’s best interests before establishing whether or not that person has capacity to make their own choices. This is unlawful and deprives a person of their basic human right to freedom and autonomy.
Any decision made on behalf of someone who lacks capacity to make it for themselves has to have regard to the ‘best interests’ checklist (set out in Section 4 of the MCA). This applies to all decisions about care, treatment and support, except where there is an advanced decision to refuse treatment (see chapter 9 of the Code) or in cases of research (see chapter 11 of the Code).
Social and health care professionals sometimes make the mistake of conflating their ‘duty of care’ with a paternalistic approach of doing what they believe to be in a person’s best interests. Yet we know that putting people in the driving seat of their care and support dramatically improves outcomes. [7] In practice, this means paying attention to what the person wants from their care and support plan rather than the professional taking control. Care staff should always question whether their own value judgements are influencing the decision-making process. [8]
What to look for in the care and support plan and other records
- How the person’s liberty and choices about their care and support are promoted.
- Information about the person’s views.
- How the person was supported to be involved in the decision about their care and support. This includes keeping them informed about any decisions made about them.
- Information against each element of the ‘best interests’ checklist (see the section in this report on Demonstrating best-interests decision-making).
Principle 5: look for the least restrictive option that will meet the need. When making a best-interests decision about a person’s care and support plan, providers must consider all of the options and then choose the one that meets the need and is the least restrictive of the person’s rights and freedoms. Staff should always challenge themselves to consider whether there could be an alternative option that is less restrictive, but nevertheless meets the identified need.
What to look for in the care and support plan and other records
- Details of the options that were considered together with the associated risks and benefits of each.
- A clear explanation of why a particular option was decided upon.
- If restrictions are imposed, when these will be reviewed and how.
References
2 – Department for Constitutional Affairs (2007) ‘Mental Capacity Act 2005: Code of Practice’, London: The Stationery Office.
3 – Ministry of Justice (2008) ‘Mental Capacity Act 2005: Deprivation of Liberty Safeguards – Code of practice to supplement the main Mental Capacity Act 2005 Code of Practice’ London: The Stationery Office.
4 – Social Care Institute for Excellence (SCIE) (2013) ‘Report 66: Deprivation of Liberty Safeguards: Putting them into practice’, London: SCIE.
5 – House of Lords (2014) ‘Select Committee on the Mental Capacity Act 2005, 2014: Post-legislative scrutiny’, summary, p 1, London: The Stationery Office.
6 – Care Quality Commission (CQC) (2014) ‘Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2012/2013’, London: CQC.
7 – Boyle, G., Heslop, P., Jepson, M., Swift, P., Williams, V. and Williamson, T. (2012) ‘Making best interests decisions: People and processes’, London: Mental Health Foundation.
8 – Banner, N.F. (2012) ‘Unreasonable reasons: normative judgements in the assessment of mental capacity’, Journal of Evaluation in Clinical Practice, vol 18, no 5, pp 1038–1044.