Tag Archives: MCA

MCA: Advance decision to refuse treatment

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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?

MCA: Who decides?

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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?

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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.

Privileged glimpses 25: Who put us in charge?

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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?

Privileged glimpses 11: Risk-free is impossible

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life without riskThis 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.

 Risk free is impossible – managed risk is the way to go.

Individual v Organisational risk

There is much more to the notion of risk than meets the eye. Many care workers think that it is their job to prevent service-users from taking any risks at all but this is not possible. In fact, even if it was possible to prevent people from taking any risks it would not be the right thing to do.

Life without risk would be life without living. It is only through accepting a level of risk in our daily lives that we are able to do anything at all. In fact, even doing nothing is risky. The risk to mental health from boredom and unchanging routine is as great as the risk to our physical health from inaction and lack of stimulating activities.

All activity, from making a cup of tea to crossing the road or even going to the toilet must involve some degree of risk in order for the service-user to maintain or develop skills. There is always a risk of failure when learning to do new things and on occasion that failure can result in some form of harm.

The trick then is to help people to understand the individual risk they are proposing to take. If they cannot understand it (for example if their mental capacity is impaired) then the risk becomes an organisational risk. In that case the organisation that creates the risk/activity for them must manage that risk to bring it down to manageable proportions. This does not necessarily mean remove the risk – simply manage it.

Obviously some things carry more risk than others. An activity that involves crossing the road with supervision might be considerably safer than the decision to go sky-diving but the principle still holds. The task is to make the risk manageable.

Just imagine how empty your life would be without risk. If we need to take risks in order to have a fulfilling life is it not just as important for our service-users?

Just as nobody has the right to remove risk from your life so you do not have the right to remove all risk from the lives of your service-users.

Types of risk

However – you really do have an obligation to manage the risks taken by those service-users who do not understand the risks they take and sometimes to prevent the more extreme or unnecessary risks.

So we need to determine:

  1. Is it an individual or an organisational risk?
  2. Is the risk manageable?
  3. What are the ‘reasonable foreseeable’ outcomes?
  4. Do we need to prevent the person from taking this risk or can we support them in it?

You can follow the entire blog series as it develops here.