MCA: Who decides?

When assessing an individual’s mental capacity it is important that we confine ourselves to assessing that person’s ability to make this particular decision (or type of decision) at this time. This is what the Act means when it refers to ‘time and decision specific’ assessment.

At first glance this seems obvious and clearly reasonable. However on closer inspection it brings up a number of issues relating to ‘established practice’ that need to change. It also provides many workers from support workers to nurses, social workers and many others with a very real source of anxiety. Here’s why.

In the past capacity decisions tended to be made by certain professionals such as psychogeriatricians or psychologists. One typical approach would be to ask a doctor to come and assess a service-user’s capacity, not in relation to a specific issue but ‘globally’. This would be done using one of several techniques, the most common in UK being the Mini Mental State Examination (MMSE).

The MMSE is a reasonable tool to assess cognitive deficit and is helpful in diagnosing certain conditions such as dementia but it is not an assessment of capacity. Diagnosis is not the same as capacity. The fact that a person has a particular diagnosis does not tell us anything about their capacity to make particular decisions. The MMSE is not decision specific unless the care and treatment being offered relates to the service-user’s ability to count backwards from 100 in 7s or to name the current Prime Minister.

The MMSE does not inquire into preferences of diet, whether or not a person understand how to cross a road safely or what time they would like to go to bed. These are the sorts of questions that must actually be assessed on a day to day basis when we are making decisions about a person’s capacity.

The other major problem with ‘global’ assessments of capacity (apart from the fact that they do not asses capacity in the first place) is that they are not time specific. A psychogeriatrician’s assessment at the start of the month will have little bearing upon the service-user’s day to day decision-making capacity at the end of the month. So unless we can persuade the Dr to visit each service-user every mealtime to assess their capacity to choose between carrots and peas we have to use a different system.

Fortunately the Mental Capacity Act provides us with just such a system and, although unfamiliar to many it is very straightforward and in fact reflects what we’ve all been doing since early childhood anyway. You see assessing capacity is not difficult in itself so long as you understand it – and also understand what we are NOT expected to assess just as clearly as what we are expected to assess.

The Mental Capacity Act is clear….

“The decision maker is the person delivering the care or treatment”
This means that the support worker who decides that Albert needs a bath is responsible for assessing whether or not Albert has the capacity to consent to that bath. If he or she decides that Albert does not have the capacity to consent to that bath then the support worker is also responsible for deciding whether or not the bath would be in Albert’s best interests.

This may seem unfamiliar when it’s written down like that but actually that is precisely what has happened day in and day out in practice for decades in health and social care settings. Nobody calls the GP every time they think a resident in a care home might need their hair washed – they just decide. What the Mental Capacity Act does for us is it provides us with a way to show that our decisions make sense and gives us the legal backing to be free from prosecution for assault so long as we can justify our actions.

Part 5 of the Mental Capacity Act is subtitled ‘Protection from liability’ and deals with just this issue, ensuring that care workers can do what is necessary so long as they can show that the individual lacked capacity and that their actions were both proportionate and in their best interests. This is very empowering for care workers because it allows them the respect they deserve in making day to day decisions and provides them with legal protection at the same time.

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