In the second of our blog series on the MCA Code of Practice consultation, we look at Chapters 2 and 3, including the five statutory principles and how to support people to make their own decisions.
Refocus on the Five Statutory Principles
The Code of Practice places renewed emphasis on the Mental Capacity Act’s five foundational principles, which should be our central focus in all situations. We are reminded again that the Act is a product of European Convention on Human Rights, and that all people, no matter their background, conditions, beliefs or appearance have a Right to Autonomy, a Right to Life, a Right to Liberty and a Right to Family Life.
In highlighting this, the draft Code of Practice reminds us that the Mental Capacity Act is everyone’s responsibility; if we do not adhere to the five principles in practice – whether we be a family member, care staff or other professional – we are liable to litigation.
As an Occupational Therapist and Advocate, I value this decision to further detail and explain the importance of the statutory principles for all those working with someone who may lack capacity for a particular decision at a specific time. The proposals embody empowerment, inclusion, reasonable adjustments, and our professional ethical frameworks.
How should people be helped to make their own decisions?
In considering the second principle, we are reminded of our duty to support capacity in all decisions within our daily lives. Based on this, we need to be able to grade and adapt the information to the individuals needs as well as be able to actively communicate in an appropriate format for that person. As an Occupational Therapist, I thrive on this challenge, and it is something we emphasise within our training packages, assessments, and other provisions as consultants.
Adjustments to support capacity can be as simple as the language we use to ask questions, provision of visual aids or objects of reference, choices, communication devices or aids, choice of environment, time of day, completion over several sessions or so many other person centred adaptations.
With this in mind, it is heartening to see that Speech and Language professionals are to be given more recognition within the draft Code of Practice. As we have mentioned in one of our recent blogs, Speech and Language teams are sorely under-utilised in many aspects of care provision, and can make a real difference in helping support capacity and help people communicate their needs.
Standardising quality of care
There is great variation in the quality of care provision across the UK, and also in the understanding and application of the Mental Capacity Act.
Indeed, from my own personal experience, the first principle tends to be under-used when reviewing care plans and documentations. As the first principle states: ‘An individual must be assumed to have capacity unless it is established that they lack capacity.’ This therefore requires team reflection on decisions as to whether there is a ‘reasonable belief’ that an individual has the capacity to make a specific decision at a specific time. The assumption should be that they do have capacity, unless it is established otherwise.
Similarly, there is also a vast discrepancy in the ways in which the second principle is applied. While many organisations naturally support a person-centred approach, others tend to apply a ‘blanket approach’ to situations, which can lead to individuals having their rights unduly restricted. Further problems then arise when it comes to the role of Mental Capacity Assessments, including when to carry them out, how to adapt them to the individual, and what to do afterwards.
These are all vitally important areas of the Act that the draft Code of Practice draws our attention to, and reiterates, with the view that failure to adhere to the statutes makes those responsible liable for litigation.
Unanswered questions from the consultation
From the draft documents, it is quite noticeable that very few professionals are not specifically or indirectly recognised as having an active role in relation to the Mental Capacity Act. This raises a number of questions including: How will complex decision referrals be received? Will there be new specific departments to tackle this area, including LPS? Is there additional funding? How are these professionals being trained?
Clearly, there is still much to be decided before the updates to the Act and Code of Practice are formalised. It will be interesting to see how plans develop.
If you have any thoughts or comments on the Code of Practice consultation, or any aspect of the Mental Capacity Act, we’d love to hear from you. Do feel free to post your comments below, or alternatively, contact us directly: info@mental-capacity.co.uk
We will share more thoughts on the consultation in the coming weeks.