Legislating is a challenge when you're dealing with people’s ability to make decisions

Legislating is a perilous job even at the best of times, but when you are dealing with a subject as complex as mental capacity – people’s ability to make decisions - it becomes even more of a challenge.

The Mental Capacity Act 2005 (MCA), a relatively recent piece of legislation, was designed to provide a legal framework for helping people to make their own decisions as well as making decisions on behalf of those who lack the capacity to make decisions for themselves. Today we released a report in conjunction with the Universities of Bristol and Bradford about a piece of research that indicates that the MCA Code of Practice needs to be revised in order to enable health and social care staff to make more effective best interests decisions.

One of the main problems with the MCA, despite it getting a fair amount of positive feedback, is that the real life situations faced by the respondents were often much more complicated than the guidance allowed for. This, when you think of just how complex mental illness (including dementia) and disability can be, is perhaps to be expected. But the guidance does not go far enough in reflecting this reality, which is why we are calling for the addition of more case examples to cover a broader range of real-life situations.

Another concern was that a significant number of best interests decisions were being made for people who have shown to have capacity and who could be supported to make these decisions with help, or who have been wrongly assessed as lacking capacity. It seems, therefore, that we need a clearer explanation of mental capacity in the MCA Code of Practice and, in particular, a better explanation of how it differs from a “lack of insight” into one’s own care needs This small distinction, far from nit-picking, is absolutely crucial to the success of the MCA.

It is fundamentally important that the MCA guidance is effective, reflects real life situations and is easily implemented. This also needs to be replicated in the MCA training and guidance that health and social care staff receive. Hopefully our findings and recommendations will prove a real asset in helping to achieve this. We have done some of the ground work, now it’s up to the policy makers and legislators to build on this.

Download the report.