The purpose of this research paper is to present the findings of a study considering the application of the Mental Capacity Act and Deprivation of Liberty Safeguards. Practitioners from a range of professions were recruited to provide their views of how to respond to a variety of scenarios. This included GPs, nurses, social workers, physio/occupational therapists and care assistants.
The Mental Capacity Act (MCA) 2005 sought to provide a framework for decision making by health and social care providers and professionals, relating to adults who may not have the capacity to make decisions for themselves. Prior to its implementation, there was insufficient legal guidance in situations requiring self-determination; for example, an adult lacking capacity as a result of dementia who is unable to make decisions regarding her care. Although previous
decision making was guided by common law, practice in health and social care was largely influenced by a paternalistic culture that reduced the agency of patients. In an attempt to protect individuals and provide a clear legal framework to guide practice, the Law Commission initiated a process that culminated in the MCA.
This study sought to understand health and social care practitioners’ knowledge of MCA/DoLS; how these frameworks are applied in practice; to determine practitioners’ consensus about good practice within the relevant policy frameworks; and sought to map out the understanding of representatives from the different areas of practice.
The study sought a diverse array of situational contexts, from comparatively minor to life-changing and even life-ending decisions, because of the wide scope of the MCA. A questionnaire was developed which provided several scenarios describing practice situations, with questions requiring participants to demonstrate knowledge and understanding of the MCA and to describe how they would respond to these scenarios.
The research suggests that practitioners are struggling to identify when to assess capacity, and when an unwise decision may conflict with clinical advice. These findings highlight a conundrum in practice about the lack of consensus when practitioners attempt to apply the MCA. The capacity of patients to refuse treatment is a key area of contention. The researchers analysis suggests the lack of consensus was due in part to a lack of understanding of key concepts underpinning the law, and possibly due to the complexity surrounding such issues as capacity decisions, best interest and deprivation of liberty. The complications that arise from these issues include the autonomy of the individual, which is in direct opposition to paternalism, which has been prevalent for many years. In the sedation and blood transfusion scenarios, for example, a lack of consensus arose from the tensions existing between notions of duty of care from professionals and the growing importance of the autonomy of the individual.
The report concludes that “there is need for the law to be reviewed in order to incorporate recommendations made by the Law Commission, but further research is needed to understand the challenge of transferring the aspirations into practice, so that there will be more consensus on the issues to avoid decision paralysis in health and social care”.
George Clerk, et al. (2018) “A Delphi survey of practitioner’s understanding of mental capacity” Journal of Adult Protection, Vol. 20 Iss: 5/6, pp.174-186
If you are interested in discussing these issues in any detail please come along to the NESWA Masterclass : Best interest – self-determination vs safety Delivered by Carole Southhall and Cat Meredith from University of Northumbria in March 2019 (date & venue tbc)