The report explores real-life practice, and suggests that the Code of Practice that accompanies the 2005 Mental Capacity Act (MCA) should be updated to enable health and social care staff to become more confident about good practice in making decisions on behalf of those who lack capacity.
Mental capacity – the ability to make decisions – has become a high-profile issue in health and social care over the past five to ten years, particularly since the introduction of the MCA. It is estimated that over one million people in England and Wales lack capacity to make certain decisions for themselves (including people with dementia and learning disabilities). It is therefore essential to make sure that health and social care, as well as legal, professionals have the right tools to make effective best interests decisions for people who lack capacity.
The report is the result of a two-year research project funded by the Department of Health Policy Research Programme that aimed to establish the extent to which the MCA and its guidance are effective, particularly when best interests decisions are being made about personal welfare, social care or healthcare, and decisions involving property and financial affairs.
Key findings of the research include:
- Best interests decisions were most often taken to protect people from harm. Discharge from hospital and change of accommodation were the next most common situations necessitating best interests decisions.
- Determining whether or not someone has capacity, even for a specific decision, was considered the most difficult aspect of compliance with the mental capacity legislation.
- Most research participants favoured joint rather than sole decision-making, but clarity and co-ordination were deemed essential for the decision-making process.
The report also calls for the Code of Practice to clarify how capacity differs from a ‘lack of insight’ into one’s own care needs, and to include case studies about assessment of capacity and best interests decision-making that reflect complex real-life situations.
Toby Williamson, Head of Development and Later Life at the Mental Health Foundation, said: ‘The Mental Capacity Act is a new piece of legislation and it is essential that we make sure that its guidance is effective, reflects the complex situations that health and social care professionals face every day and is easy to put into practice. The Code of Practice was written before the Act came into force and we now know from our research that it does not always encompass the complexity of capacity assessments in practice and that staff working in health and social care continue to need support to improve the way that they make best interests decisions. We hope that our recommendation to revise it by reference to our findings will prove a real asset in helping them achieve this.’
Dr Val Williams, lead researcher at the Norah Fry Research Centre, said: ‘The concepts of “mental capacity” and best interests decision-making can seem straightforward on paper, but in real life they are often difficult to put into practice. Our research involved over 400 practitioners, who felt keenly the sense of responsibility in making a decision about someone else’s life. They reported on some very exciting and interesting practice; when the MCA is well applied, it creates a framework for ensuring both autonomy and protection of people who need some support in both major decisions and everyday life. We may all be subject to the MCA at some point in our lives, and so this is something that affects us all. We trust that this research will help by clarifying and further disseminating good practice and guidance.’
The full report is available at online.