As an Approved Mental Health Professional, practicing
under the Mental Health Act 1983, I am well aware that it is impossible to
discharge the functions of the AMHP competently without a working understanding
of the Mental Capacity Act 2005. Indeed the new MHA Code of Practice devotes a
whole chapter to mental capacity and deprivation of liberty, stating:
“A sound understanding and application of the principles
and provisions of the Mental Capacity Act (MCA) and the Deprivation of Liberty
Safeguards (DoLS) and of the common law relating to consent, is essential to
enable decision makers to fulfil their legal responsibilities and to safeguard
their patients’ rights under the European Convention on Human Rights (ECHR).”
The Mental Capacity Act, and the later Deprivation of
Liberty Safeguards, which was included in the Mental Health Act 2007 (which
amended the Mental Health Act 1983 – do keep up), were designed to address gaps
in the law which had been identified by a number of legal decisions in Europe
and the UK relating to the treatment of people who lacked capacity to make
their own decisions.
This new book by Matt Graham and Jakki Cowley is
described as “a practical guide”, and it certainly is: it is written in order
to be easily understood, and the authors take pains to explain the core essence
of the MCA. They also make it clear that knowing about the MCA is not only
important for professionals, but for everyone; they make the useful point that
“when we consider the term ‘service users’ or ‘people who use services’ we are
not referring to an exclusive group of people who might use specialist
services...the term ‘service user’ means everybody, because we all use health and social care services.”
The basic purpose of this book is to provide “accessible
information as to what the MCA ‘looks like’ in practice and to offer something
which the readership can easily digest and apply in practice in order to
enhance the experiences of people who require support with making decisions or
who require decisions to be made for them in their own interests.” Its 180 or
so pages proceeds to do just that.
The 7 chapters cover various aspects of the MCA,
beginning with an overview of the Act, then a chapter each on maximising
capacity and assessing capacity, and chapters on advocacy and empowerment,
advance care planning, best interests, and finally liberty and choice, which
covers restriction and deprivation of liberty.
Each chapter includes illustrative case studies, as well
as references to relevant case law, and there are a number of useful checklists
for practice and decision making.
I very much like the way the authors constantly distil the essence of the MCA, such as suggesting that the MCA is: “about two things and two things only:
2. People’s rights to have decisions made for them if they lack the capacity to make the decision themselves.
Confidence, competence and compliance with the MCA can be demonstrated if practitioners know the differences between the two and can remain mindful of the tensions that exist when trying to work out the difference.”
Even more profoundly, the authors aver that, regardless of the decisions being made relating to people lacking capacity, professionals ought to ask themselves: “On what authority am I making this decision?”
The chapter on maximising capacity is based on the implications of the first principle of the MCA, which is: “A person must be assumed to have capacity unless it is established that he lacks capacity.”
This naturally puts the necessity to assess capacity at the forefront. The authors again pose useful questions:
What is the decision that needs to be made?
What problems or difficulties is the person having relating to this decision?
What support do they need?
They point out that “there is a risk that a presumption
of incapacity is what starts the
process and an immediate move towards considering best interest decision-making
takes place. This is not the intention of the Act.”
The chapter on assessing capacity poses another useful
question for the assessor right at the beginning: “What right do I have to
assess this person’s capacity and why would I even do so?” Such questions compel
the assessor to examine their motivations and the reasons for the capacity
assessment, and make them confront a major potential problem in capacity
assessments, which is that the assessor is in a position of power over the
person being assessed, because “to hold the keys to making a decision that someone
lacks capacity is a powerful act”.
Each chapter is full of statements designed to make the
professional think critically about their practice. One such statement in this
chapter is: “You are always assessing capacity – whether you know it or not!”
The authors suggest that it is important, when it is suggested that someone
lacks capacity, to ask the questions, “what for?” and “what evidence do you
have?”
This chapter goes on to guide the assessor, in everyday
language, through the process of assessing capacity. It concludes by offering
useful tips for recording your conclusions.
The chapter on advocacy and empowerment goes into detail
about the functions of the Independent Mental Health Advocate, while the
chapter on advance care planning looks at advance decisions, including
decisions to refuse treatment, and the role of the lasting power of attorney.
Setting up a lasting power of attorney, giving
instructions for another person to make decisions on your behalf if you lack
capacity, is extremely important for everybody. If you decide to leave it till
you or someone close to you begins to lose capacity, it may already be too
late; then it would be necessary to go to the Court of Protection if major
decisions needed to be made on your behalf. My wife and I have both set up
lasting powers of attorney, for the eventuality that at some point in the
future one or both of us might lose the capacity to advocate on our own behalf.
Chapter 6 is devoted to best interests, and is designed
to demystify this area of the MCA, and reassure professionals about how to decide
on someone’s best interests. The authors make the suggestion that competence to
make these decisions is not necessarily the issue, but confidence is. They
point out that many professional just get on with the job in hand, “but when we
have to justify our decisions, evidence how we have reached them and then go
forth with authority given to us by law to enact them, then the confidence
drops and we start to question whether we know what we’re doing.”
Again, they pose questions, this time the question, “how
do I know what is in this person’s best interests?” They answer this by
reformulating the question to: “Why does a decision need to be made in this
person’s best interest and what must be considered in order to achieve this?”
They break down the decision making into two categories,
less complex decisions, and complex decisions. What sort of decision that needs
to be made depends on “the complexity of who is consulted, who is involved in
the decision-making process, how urgent the decision is and what the decision
specifically involves”, for example, whether it is to do with day to day living
decisions, or major life decisions with legal implications.
This chapter also looks at how to manage best interests
meetings, and suggests a simple balance sheet for weighing up the advantages
and disadvantages of the various options.
The final chapter concentrates on liberty and choice,
which is mainly concerned about restriction of liberty and deprivation of
liberty. The Deprivation of Liberty Safeguards, and the considerable amount of
case law that has accumulated (and continues to accumulate: the very recent case of Bournemouth Borough
Council & PS & DS [2015] EWCOP 39 appears to fly in the face of the far
reaching Cheshire West judgement) is not only complex but at times
impenetrable, and while this chapter attempts to address this, I would have
liked more of the book to have been devoted to this fraught area.
Nevertheless, they attempt to shed light on the
difference between a restriction and a deprivation of liberty, for example
dispelling the myth that the MCA prohibits the restraint of people. They make
the point that, for example, “paramedics
who use reasonable and proportionate restraint, including sedation, to convey
someone who lacks capacity to hospital and who is resisting, following a road
accident, will be protected from liability unless that act demonstrates
negligence.”
Elsewhere in the book, the authors give an example of an
elderly woman who had incurred a head injury in a care home and an ambulance
was called. Although she needed to go to A&E, the lady stated that she
wanted to remain at the home. The ambulance crew left her, saying that “they
couldn’t make someone go to hospital against their will.” The authors point out
that “there is this myth in practice that appears to be part of the culture of
care that practitioners cannot act if someone refuses.”
This scenario is one that will be familiar to AMHPs, who
are often asked to undertake assessments under the MHA for patients who ought
to be dealt with within the MCA. I hope that ambulance crews and others in the
medical frontline will hear the message the authors are trying to get over,
which in this sort of scenario is that “the MCA permits the use of reasonable
and proportionate force in exceptional circumstances if it is in someone’s best
interests if they lack capacity and the criteria are met.”
While some reference is made to the Mental Health Act, I
would have liked to have seen more discussion and guidance on the interface
between the MHA and the MCA, which frequently causes AMHPs much confusion and
frustration. However, despite this minor niggle, this book is a considerable
achievement.
A Practical Guide
to the Mental Capacity Act 2005 is a very readable and informative book, and of
much more practical use than Jones’ rather drier and legalistic Mental Capacity
Act Manual. I would wholeheartedly recommend this book to all who find
themselves in a position of having to make decisions relating to people who
lack capacity, and I have already recommended to my AMHP colleagues that they
should get this book.
A Practical Guide to the Mental Capacity Act 2005, by
Matthew Graham & Jakki Cowley, published by Jessica Kingsley (http://www.jkp.com/)
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