Category Archives: Mental Capacity Act

Webinar/tutorial: Hanged if you do – Hanged if you don’t

A 90 minute online webinar, Wednesday 24th February 7pm – 8:30pm

Joining fee £10:00

One of the biggest headaches for health and social care workers is how to make sense of their duty of care. On the one hand we’re told that we must take steps to ensure safety and on the other hand we need to respect people’s rights to make their own decisions, even if they’re risky. This can be a delicate balance to strike.

How not to be hanged

Nobody needs to be hanged

It’s true that the law surrounding duty of care can be complicated but care workers aren’t expected to have the same knowledge as barristers. We’re expected to understand the basic principles of care law, to know what to do if we’re unsure and we have to act reasonably. We don’t even need to be right every time. We only need to be reasonable.

This 90 minute webinar/tutorial is designed for workers who are far too busy delivering care to spend their time reading through long reports of legal precedent. It covers the basic points we all need to be safe ‘at the coal face’ of care delivery in a practical, work-based way that is both engaging and understandable.

Delivered in plain English, the basic message of ‘Hanged if you do – Hanged if you don’t’ is

‘Don’t panic’.

By taking the mystery and complicated jargon out of the equation, Stuart Sorensen guides workers step by step from basic principles to a solid understanding of duty of care. Real life stories and clear examples are used throughout to make the webinar both absorbing and easy to apply in practice.

Click here to join us on Wednesday 24th February 2021 7pm – 8:30pm GMT

Joining fee £10:00

The webinar covers:

Professionalism

The duty of care myth

Balancing rights, risks and responsibilities

Common law and necessity

Being reasonable

Safeguarding

Mental capacity and the right to decide

Acting in best interests

How not to be Hanged

Click here to join us on Wednesday 24th February 2021 7pm – 8:30pm GMT

Joining fee £10:00

MCA: Advance decision to refuse treatment

On October 25th 2007 22 year old EG gave birth to twins at the Royal Shrewsbury Hospital. A few hours later she was dead because she refused to accept a blood transfusion. EG was a devout Jehovah’s witness. She suffered a sudden haemorrhage and bled to death following a natural delivery. EG had already signed a form before the birth refusing blood in such an event.

According to newspaper reports staff at the hospital tried to get EG’s husband and wider family to consent to the blood transfusion on her behalf but they would not.

  • Is this ‘valid and applicable’ as an advance decision to refuse treatment?
  • What about the notion that ‘decision-makers should not be motivated by a desire to bring about the person’s death’?
  • What do you make of the staff asking EG’s family to overrule her decision?
  • If the family had consented would the transfusion have been legal?
  • If not – would the family have been liable or the staff who gave it?
  • Who was the legal decision-maker in this situation?

After the mental capacity assessment

Assessing mental capacity is one thing but what happens next? What must we do once we know that a person lacks the mental capacity to make this particular decision at this particular time?

 

 

What is mental capacity?

Mental capacity is the ability to make your own decisions. It’s assessed using a straightforward two-part test which is much easier to deal with than most people think:

Part 1: The diagnostic threshold consists of 2 questions.
Part 2: The functional test consists of 4 questions.

That’s it – the assessor needs to know the answer to 6 straightforward questions and they can tell whether or not the other person has the mental capacity to make ‘this particular decision at this particular time’.

If you want to know what these questions are (and how straightforward it all is) you’ll need to watch the video. And don’t forget to subscribe and share while you’re at it 😉

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.

Who put us in charge?

A short video introduction to the principles of the mental capacity act 2005.

Who put us in charge?

If you’d like to arrange training for your staff please complete and send the contact form below.

Social and mental health care training

I’ve been getting a lot of new inquiries lately, which is wonderful. It seems that training budgets are becoming available to the small specialist trainers again without organisations having to rely upon the off-the-shelf generalists on their ‘pre-approved supplier lists’. There are many courses that only a specialist clinician can provide. Click below to download the Mind The Care brochure…

170429 Mind The Care brochure.

That’s great news for the little man like me. It means I can get to more organisations and train more staff from the perspective of the expert practitioner. Learning from someone who actually does the job is always better than listening to a training executive with a script.

So I thought I’d put a little post up for those organisations who haven’t experienced my training yet (and it is an experience), outlining my most popular courses and seminar topics and inviting them to get make contact. Just click here and I’ll be in touch to design the exact training or speaking programme you need to help you look after and get the best out of your care team.

Click here 170429 Mind The Care brochure to download Mind the care’s most recent brochure.

courses-meme

Doing the rights thing

​So many nationalists talk about how great UK is. They cite our history, particularly 20th century history and the post-war society they grew up in. And I agree – for all its faults, post-WW2 UK hasn’t been a bad place to grow up in.

Our emphasis on justice, compassion, tolerance and human rights has created a pretty cool place to live. We have education, health care, protection for workers, unemployed people and the sick and disabled. We have a reasonable justice system without barbarity and access to legal remedy for all. It’s true that  recent ideologically driven austerity measures have definitely impacted negatively on most of these advantages. None the less most UK adults today grew up with a working set of rights and safeguards before recent governments began trying to remove them.

What seems odd to me is the way that, whilst extolling our nation’s virtues, these nationalists often want to remove the emphasis on rights, tolerance, representative democracy and justice that made modern UK society so good in the first place.

Why is that? I think it’s probably because they don’t quite get the reality of Human Rights and what they’re in place to achieve. For years now the media and certain politicians have distorted the public’s perception of human rights with a parade of half-truths and downright deceptions.

My solution is to develop a training pack, primarily for care workers but actually relevant across society to help show people what’s at stake as the UK prepares to leave the EU. There is a lot of talk about scrapping our human rights. I think we need to be very, very clear about just what that means – and about what we want to come next. Knowledge is power!

Please get in touch if you have any suggestions for topics to include, FAQs to prepare for or any other questions or comments about this new project.

Many thanks.

Stuart

Course design 13: Take the time to tell the tale

The following is the text of an article I first wrote for ‘Local government Lawyer’ magazine. You can find it online here:

http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=7057%3Alessons-in-law&catid=52%3Aadult-social-services-articles&q=&Itemid=20

Lessons in law meme“Lessons in law      

Thursday, 23 June 2011

The right approach to training in health and social care law can make a world of difference, writes Stuart Sorensen.

The abuse of vulnerable adults at Winterbourne View Hospital was extreme, dramatic and horrific. That’s presumably why Panorama chose to investigate it and why it has received so much attention from both press and public. Many bloggers have jumped on the scandal to make a point, some moral and some procedural. I have done as much myself. Several of us have taken the opportunity to write about specific legal issues from the Mental Capacity Act and the Deprivation of Liberty Safeguards to the Mental Health Act and the European Convention on Human Rights. It’s always helpful to have a topical ‘angle’ to focus upon when discussing law.

Unfortunately though this sort of blogging often becomes an exercise in futility. Those people who are interested in matters of law will most likely already be familiar with the principles discussed, or at least know how to find out about them. Those who are not, who simply want to know more about the human drama unfolding as a result of the programme will simply ignore the legal stuff in favour of more lurid pieces. For many the very thought of trying to understand legal concepts conjures up images of dusty textbooks and overly complicated jargon that might as well be written in a foreign language. There’s a perception of inaccessibility that discourages many people from even trying to understand. That’s where I come in.

I’m not a lawyer – I’m a nurse. A mental health nurse to be exact. I’m also a trainer. Oh yes – and I’m a bit of a geek with a passion for law. Well, everybody needs a hobby.

So it’s not too surprising that I regularly find myself training nurses, care workers, social workers, doctors and even police officers on health and social care law related issues. I must have trained tens of thousands of people over the years on topics such as the Mental Capacity Act, the Deprivation of Liberty Safeguards, the Safeguarding Vulnerable Groups Act and its Scottish equivalents the Protection of Vulnerable Groups (Scotland) Act and the Adult Support and Protection (Scotland) Act. Does that make me an international trainer? I doubt it but a nurse can dream.

During these sessions one theme is almost constant. People come into the training expecting to be bored. They also expect to be confused by a topic that they will not be able to relate to and that has little or nothing to do with their everyday experience. Not the best starting place for a jobbing trainer like me.

The problem is that many legal trainers have never taken the time to understand how health and social care workers learn. We’re different from lawyers – at least I think we are. There are many ways to think about learning styles and personality types and generalisations can be misleading but here goes anyway. In my experience health and social care staff from support workers to social workers tend to be more or less ‘top down’ learners. If the training was a jigsaw they’d like to see the picture on the box before they even start to look at the individual pieces.

Introducing care professionals to the minutiae of doctrine has its place but not until they understand the broad picture – the background and purpose of the particular act and how it relates to their work on a day to day basis. These people are not lawyers, they don’t generally think like lawyers and very often they don’t even start with the basic point that the law can help and protect them.

There is a culture of resentment in health and social care, especially regarding mental capacity, rights and safeguarding legislation. It’s not because people would prefer to be abusive – it’s because they don’t understand the law well enough to realise how positive it can be. So we begin with the basics, the purpose, the background and the scope. And we do it through story. This allows us to pull out the basic principles that we will rely upon and return to throughout the rest of the training. It sets up a basic foundation, the ‘picture on the box’ and gives participants the confidence to engage without fear of looking ‘stupid’.

Care workers tend to be ‘hands on’ people. We don’t usually ‘do’ abstract nearly so well as we ‘do’ tangible. That’s not to suggest that we’re not capable, far from it. But tangible is the ‘default’. As a rule we work with people and we get involved in the narrative of their lives. That’s what we do. It’s also how we learn.

So for Safeguarding we begin with Soham and with Miss X. For the Mental Capacity Act we tell the Bournewood story and from this month DoLS training will start with Hillingdon and the ‘Neary case’. By using narrative right from the start we draw people into a world that they’re already familiar with. By asking questions throughout the stories we begin to relate legal constructs to everyday scenarios:

What should the social worker have done?

How should the care worker react?

Is this good practice? If not, why not?

Before they realise it the participants have gone from work to law without a hiccup. This is the value of narrative. From stories and case studies to participants’ own experiences and even newspaper headlines, stories work. Stories are memorable, stories are accessible and stories help people to ‘grock’, to assimilate the true meaning of the law.

That may seem obvious. Indeed it is obvious but it’s also depressingly uncommon. I genuinely have lost count of the number of people who’ve told me how much easier to understand they found social care law after narrative based training. I won’t bore readers with their reports of previous, ‘chapter and verse’ style training but I’m sure you can imagine.

So if you’re a lawyer, a trainer or a social worker with the responsibility for delivering health and social care law training to care workers remember the rule of ‘T’:

Take The Time To Tell The Tale

 

Privileged glimpses 25: Who put us in charge?

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?