Social workers and the Mental Capacity Act: why experience is key

A Mental Health Foundation report shows that professional knowledge is the best tool for making legally sound decisions

Last week, the Mental Health Foundation (in association with other partners) published an interesting report. It looked at the way “best interests” decisions were made by professionals in health and social care settings under the Mental Capacity Act, on behalf of people who may lack the capacity to make specific decisions.

There is no doubt that since the Mental Capacity Act 2005 was enacted, it has led to an improvement in practice and a significant additional protection for adults who lack capacity.

As a social worker who has a lot of interaction with people who have dementia, in particular, it has become a mainstay of my practice and has significantly benefited many of the people I work with and for. It mandated into law sound practice where the person who lacks capacity and for whom “best interests” decisions may be made remains at the heart of the process.

A “best interests” decision is not a magic protocol – it is any decision taken on behalf of the person who lacks capacity. Often it is felt to be a significant decision, for example, regarding a place of residence or medical procedure.

Certainly, those are the types of decisions referred to in the report, but a home carer making a decision about what sandwich to make for a service user with advanced dementia is making a choice on that person’s behalf whether they have ham, cheese or chicken.

The implications (and protections) are understandably different when the decision is about whether the same service user should continue living at home or move into residential care. The decision-maker is the person who makes the decision. It sounds obvious but it is a part of the legislation that becomes very problematic when professionals don’t feel comfortable with responsibility for the decisions they make.

While discussion is crucial, the act demands that the decision remains closest to the individual. A doctor makes decisions for medical treatment on behalf of someone without capacity. A paramedic makes the decision about whether to take someone who is objecting, but lacks capacity, to hospital. And a social worker makes a decision about moving someone to a residential care home. All these decisions may have very different timescales but they all should involve the person, their family and network.

The report explains that these processes are easier said than done. Firstly, a lack of capacity for that particular decision is established. Everyone working in health and social care should know how decision-specific capacity assessments are undertaken and feel comfortable with them before “best interests” decisions are made. They can be recorded in different ways but it is vital that the processes in the Mental Capacity Act are followed, to protect people who need decisions made on their behalf.

Worryingly, the MHF report particularly highlights a lack of adherence to the principle of assuming capacity as a starting point. With this widespread misuse of the Mental Capacity Act, it is clear that training alone is not enough. Training is easy to deliver but it is using that knowledge in practice that is the key. Knowledge has to be combined with professional confidence to make decisions that are legally sound and in adherence with the Mental Capacity Act.

As the report suggests professionals are reluctant to take the role as decision-maker, there has to be a further emphasis that sometimes, having a particular role in health or social care means taking decisions on someone else’s behalf. It isn’t always easy. It has to be done in a way that’s sensitive and, more importantly, legal.

Ermintrude – a social worker working across adult and mental health services – blogs at the Not So Big Society.