MCA Code of Practice needs revising to enable more effective best interests decisions to be made

Release Date: 31 January 2012

Source: Mental Health Foundation

Country: United Kingdom

The Mental Health Foundation, in partnership with the Norah Fry Research Centre at the University of Bristol and the Centre for Applied Social Research at the University of Bradford, have today published a report calling for the Mental Capacity Act (MCA) Code of Practice to be revised to enable health and social care staff to make more effective best interests decisions.

Mental capacity – the ability to make decisions - has become a much higher profile issue in health and social care over the last five to ten years, particularly since the introduction of new mental capacity legislation in England and Wales in 2005. It is estimated that over 1 million) people in England and Wales lack capacity to make certain decisions for themselves (including people with dementia and learning disabilities). It is therefore essential to make sure that health and social care professionals have the right tools to make effective best interests decisions for people who lack capacity.  

The report is the result of a two year research project led by Dr Val Williams at the Norah Fry Research Centre and funded by the Department of Health Policy Research Programme aiming to deliver evidence about the extent to which the MCA and its guidance are effective, particularly when best interests decisions are being made about personal welfare, social care or healthcare, and decisions involving property and financial affairs.

Key findings from the report:

  • A significant minority of best interests decisions were being made for people who had been shown to have capacity and who could be supported to make these decisions with help or who had been wrongly assessed as lacking capacity
  • Different ways of making successful best interests decisions have been identified which are not currently reflected in the training and guidance available to health and social care staff
  • Lack of awareness of Deprivation Of Liberty Safeguards (DOLS) was reported in some cases
  • Many staff found the MCA helpful in balancing the autonomy and protection of individuals lacking capacity
  • Participants valued guidance and training that was relevant to their own practice although people admitted that the situations they faced were more complex than is currently reflected in the guidance

The report calls for:

  • The MCA Code of Practice to be revised to enable health and social care staff to make more effective best interests decisions
  • A clearer definition of mental capacity to be included  in the MCA Code of Practice, which clarifies how capacity differs from a “lack of insight” into one’s own care needs
  • The development of more case examples to be included in the guidance about assessment of capacity and best interests decision making reflecting the complex real life situations highlighted in the report
  • Gaps in current practice, such as the possible under use of DOLS, should be highlighted in the Code of Practice
  • Revision of training materials by the Social Care Institute for Excellence  to include the different models of decision making identified in the report where these are used to amend the MCA Code of Practice
  • Department of Health policies and guidance about other areas of health and social care practice should be updated to reflect changes in the MCA Code of Practice
  • All providers of health and social care services (including IMCA providers) should be regularly audited for compliance with MCA and DOLS. Compliance should be monitored by the Care Quality Commission
  • Care homes should review assessments of capacity and best interests decision-making on a weekly basis. They should ensure that all staff are able to undertake capacity assessments themselves rather than contact specialists for that purpose
  • Further research needs to be carried out to better understand the different perspectives of those involved with best interests decisions

Toby Williamson, Head of Development and Later Life at the Mental Health Foundation says:

“The Mental Capacity Act is a new piece of legislation and it is essential that we make sure that its guidance is effective, reflects the complex situations that health and social care professionals face every day and is easy to put into practice.

The Code of Practice was written before the Act came into force and we  now know from our research  that it does not always encompass the complexity of capacity assessments in practice and that staff working in health and social care continue to need support to improve the way that they make best interests decisions. We hope that our recommendation to revise it by reference to our findings will prove a real asset in helping them achieve this”.

The research involved collecting evidence from people working in health, social care and legal settings. The research team developed an online research tool to gather data for the first stage of the project. The ground breaking tool, called BRIDGET, can also be used by anyone who has been involved in a best interests decision to evaluate how well the process met the requirements of the MCA and its Code of Practice. When people have completed the questions they will almost immediately receive an automated report indicating how well the process met the requirements of the MCA and the Code of Practice.

Download the report