This series of blog posts first appeared a few years ago on a now defunct blog called ‘Care Training’. It was inspired by the training maxim of ‘making the unconscious conscious’. It is intended to take what really ought to be the most basic principles of health and social care and put them down on paper. The series isn’t only an exercise in stating the obvious though whatever the title might suggest. It’s actually intended as a philosophical foundation manual for workers and informal carers to help them get their care ‘on track’ and then to keep it that way.

The first of the Mental Capacity Act’s underlying principles is:

An assumption of capacity

This means that we need to begin by assuming that everyone we meet is capable of making this particular decision at this particular time unless we have reason to suspect otherwise. In other words that person is ‘Most people’ in relation to the ‘three types of legal status’ table below:

Three types of legal status

Most people

Make their own decision

Bournewood gap

Follow Mental Capacity Act 2005

Mental Health Act

Follow Mental Health Act 1983/2007

People whose capacity to make the decision is not in doubt People who are not detained under the MHA but who lack the capacity to decide People who (because of a mental disorder) are deemed to present a risk to self, risk to other or are at risk through self-neglect.

This might seem very obvious and reasonable (in fact it is) but it doesn’t sit too well with common practice in a number of care environments. Let’s look at an example.

When I was still a young man I worked as a care assistant in a Learning disabilities residential home. Looking back I can see a number of problems with the way the home was run but at the time, having come into a system that was already established, I thought that this was how learning disabilities establishments were supposed to operate. I didn’t know any better.

One of the fundamental mistakes I used to make related to the residents’ ability to make choices. This mistake covered all sorts of decisions from what to watch on the TV to whether or not they wanted to come on group outings to the local swimming pool.

The house was set in its own grounds in a beautiful part of Lincolnshire and the lawn and garden were nothing short of stunning. The home employed a full time groundsman to keep everything in good order and he did an excellent job. Consequently, many of the residents used to enjoy spending time sitting under the trees in the grounds or walking around the landscaped garden.

However this wasn’t always possible. You see, along with all the other staff there, I would take it upon myself to stop residents at the door and expect them to explain to me why they were safe to go outside. If I wasn’t completely satisfied then I would prevent them from doing so – this wasn’t difficult because the doors were always locked and only the staff had keys. Only if I was happy for them to leave would I let them go outside.

The problem was that this was the wrong way around. I emphasised the word let in bold for good reason. You see it wasn’t up to me to let people do anything.

We use the word ‘let’ a great deal in health and social care but that implies an authority we do not usually have. I can only let a person do something if I have the legal power to prevent them – and usually I don’t.

It wasn’t up to me to let people go outside into their own garden. They went because they had a right to and unless I had good reason to interfere with that they didn’t need my permission at all.

A more recent illustration of this comes from the N. Cornwall Learning Disabilities Partnership NHS Trust inquiry that took place in 2006. There were 40 referrals to the POVA list (now the vetting and barring list) and many of them were to do with staff preventing people from using areas that they had a right to without good reason.

Whenever we are tempted to take control of other peoples’ choices it’s useful to begin by asking ourselves:

“Who put me in charge?”

Unless you can demonstrate that the individual lacks the capacity to make this particular decision at this particular time then nobody put you in charge. The person has a legal right to make their choices whether we like it or not.

Even if the person lacks capacity (in which case you may very well be ‘in charge’) you will still need to act in their best interests and that doesn’t automatically mean doing what is best for the staff or for the relatives.

People have the right to occupy their own space, to make decisions about when they get up or go to bed, to choose who they spend time with and whether or not to involve themselves in activities. They also have the right to disagree with us and to ignore the preferences of family members just as you have. Your relatives have no right to tell you what to do (assuming you’re an adult) and the same is true for your service-user with capacity.

Who put us in charge?

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