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Reflecting on changes to the MCA Code of Practice (Part 5)

Care and support: close-up picture of holding hands

In today’s reflection on the proposed updates to the Mental Capacity Act’s Code of Practice, we consider the protection that the Act provides. This is the overarching protection both for the individual, as well as those supporting them including friends, family and professional staff at all levels.

To support your reading of this blog, we strongly encourage you to read the two chapters we focus on in this blog: Chapter 6 and Chapter 23.

Protecting those who provide care and treatment

Take a moment to consider the following scenarios:

  • You see a person in uniform entering a person’s property, followed by screaming and shouting including the phrases ‘get out!’ and ‘intruder!’
  • You are in a hospital ward and hear distressed sounds from behind closed curtains, with repeated cries of ‘stop!’
  • You are in a care home and see a staff member put medication in a resident’s yoghurt.

Within the health care world, you might be familiar with similar scenarios with individuals who have advanced dementia, potentially exhibiting with disorientation, reduced recognition and distress within these situations. While it may shock some readers, as the law stands currently, unless there is documented evidence of ‘reasonable belief’ that an individual lacks Mental Capacity for these specific acts of care and treatment, alongside a proportionate and least restrictive Best Interest decisions, then in each case, the care professional is open to litigation and potentially criminal charges: trespass, assault or otherwise.

This is a significant and challenging part of the Mental Capacity Act and one that should not be taken lightly. Without appropriate safeguards in place, each of the individuals in the scenarios described above may in fact be breaking the law. This is the case regardless of whether they are a sibling, parent, child, friend, paid carer or other professional. If the appropriate processes have not been carried out under the Mental Capacity Act, then the person providing care is breaking the law and may face criminal charges.

Thankfully, to work lawfully under the Act is not as complicated as one might think. Chapter 6 of the draft proposals for the updated Code of Practice reassures us that family, friends and care staff do not need to be experts in Mental Capacity. However they do need to follow the five core principles and ensure they have documented ‘reasonable belief’ about an individuals lack of capacity for a specific decision associated with their daily living. In doing so, Section 5 of the Act provides protection from liability for those acting in Best Interest in areas of their care and/or treatment if determined to lack Mental Capacity for a specific decision.

If ever you are unsure as to your situation regarding the Act and whether a decision is being made lawfully and within best practice guidance, we advise carers seek professional advice from professionals in this area.

Protecting the individual receiving care

Chapter 23 is perhaps the simplest but most vital chapter in the revised Code of Conduct as it focuses on the individual receiving care. While it may come relatively late in the Code, it builds on the arguments of the preceding chapters, such a that if all appropriate steps are taken to consider and assess capacity and complete a Best Interest decision (if required) then appropriate safeguards and protections should be in place for the individual.

However, it is important to state clearly that decisions made on behalf of an individual in Best Interest can pertain only to care and treatment if the individual is assessed to lack capacity.

These decisions must follow all directed steps with the Code of Practice inline with the five core principles, keeping in mind person-centred care and least restrictive options that are proportionate to the individual’s need.

With this in mind, Chapter 23 of the draft Code reminds us that we all have a responsibility and duty of care to safeguard those who lack mental capacity, reporting any concerns to relevant agencies (such as social services or the police) if needed. From this point the relevant body will step in to assess and support, taking steps if required to safeguard and protect the individual.

Equally, if there are concerns surrounding the actions of a Lasting Power of Attorney or Court Appointed Deputy, then guidance stipulates that these concerns should be handed over to the Office of the Public Guardian who will take appropriate measures to investigate. In matters relating to care and/or treatment, the Code highlights options to raise formal or informal complaints to challenge decisions, with options to escalate if needed.

Potential issues

This part of the draft Code is perhaps the poorest explained areas. In my work as an RPR, if a person has received poor care I can raise it to the service, however, I am unable to continue with the complaint as it comes outside of my remit as an RPR. I cannot therefore refer for an IMCA or IMHA as the Acts are written specifically, requiring referral from someone working in professional capacity (which an RPR isn’t in this context).

However, I also work as an IHCA, for which the person I support must have Mental Capacity to direct. Therefore, who directs who, and raises complaints if there is no family to do so?

Protecting Rights

Reading the proposals for the draft Code of Practice, it is perhaps surprising that protections for those providing care and treatment (Chapter 6) come before protections for the individual (Chapter 23). Of course, it is certainly the case that the previous Chapters 1-22 feed into the important protections of Chapter 23. However, there is a chance it can get lost at the end of such a long and detailed document.

From my own experience working as an Occupational Therapist, Mental Capacity Assessor and Advocate, I can think of numerous cases I have seen over the years where Rights have been infringed. In many cases, this wasn’t necessarily even due to purposeful intent. More often than not, it may be the case that staff lack knowledge around Human Rights and the Mental Capacity Act specifically. It may also be that things were done a certain way because ‘that’s how things have always been done’.

However, lack of knowledge is not a sufficient excuse. While Chapter 23 may not be the most prominent chapter in the Code of Practice, it is certainly among the most important. It reminds us of our role in protecting the Rights of those we care for. It also reminds us of our legal obligation to adhere to the Mental Capacity Act, and makes it clear that there will be real legal consequences in cases where an individual’s rights are infringed.

After all, it is our responsibility and duty of care as professionals to promote best practice, partner with service users and other professionals and ultimately, protect Rights.

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