The National Mental Capacity Forum (NMCF) is a working initiative between the Ministry of Justice (MoJ) and Department of Health and Social Care (DoHSC). The core purpose for the forum is to improve implementation of the Mental Capacity Act (2005), for which it has been releasing annual reports since 2016. The latest report for the period 2022-2023 has just been published (May 2024), and is recommended reading for anyone working in the field.
A sector in crisis
The NMCF report opens with a powerful statement:
‘[we are] witnessing the MCA’s networked systems facing potential collapse.
NMCF Report 2022-2023, p. 1
‘Without prioritising investment in (i) life-long, supported decision-making and (ii) the primacy of care and support in our homes, the default option of long-term care in acute hospitals, specialist hospitals and care homes is real.’
While this statement is perhaps shocking to some, it is not surprising to anyone who has kept abreast of the unfolding situation surrounding the Mental Capacity Act and its implementation. Especially consider Age UKs report published earlier this year as well as ongoing media coverage across time.
Meanwhile, Chair of the NMCF Margaret Flynn reminds us that as far back as 2014, the House of Lords Select Committee’s post-legislative scrutiny report concluded that:
‘it [the MCA] was failing those it was designed to protect and empower, that too many people were being deprived of their liberty without protection of the law or the safeguards intended.’
NMCF Report 2022-2023, p. 3
As we have discussed numerous times in our blogs, the NMCF report confirms that part of the root cause of issues around the MCA is the ongoing ‘lack of awareness and a lack of understanding’ (p. 18). This is reflected in the poor practice identified in many safeguarding reviews (p. 19), as well as ongoing media coverage and the general level to which the public are aware of their rights.
Yet despite evidence, appeals and reports, essential updates to law and codes of practice have been deferred, leaving a failing system to continue to crumble, without response from government. This is evidenced within the failure to enact updates to relevant Codes of Practice and Legislation which has been awaited long before the MCA Amendment (2019).
Mental capacity in practice
In the report, five case studies are shared that draw out different aspects of the MCA (2005) in practice. These case studies include a commentary provided by the NMCF on what current guidance, best practice, and legal requirements direct. They are well worth reading:
- Lucas’ scenario considers the misconceptions regarding parental consent, section 20 of the Childrens Act (1989) and Deprivation of Liberties Safeguards (DoLs) for a person 16 years of age who experienced high levels of restraint and restrictions.
- David’s case looks at the principles of the MCA and their use, or misuse, in practice.
- Sam’s experiences shared highlight capacity in terms of treatment decisions regarding a PEG and wish to cease treatment, considering rights and best practice. For which, the case should have been heard before the Court of Protection (CoP).
- Colin’s case study expands upon use of Principle 2 in practice, through supporting capacity with good use of referral to Speech and Language Therapist to aid communication and understanding,
- Mrs Fisk’s scenario explores a series of events wherein the MCA (2005) had not been enacted correctly, starting with no Best Interest Decisions enacted when it was identified that she lacked capacity for finances, which subsequently resulted in her eviction and homelessness. Moving onto a request for a DoLS on admission to a care home that was declined.
Supported decision-making.
The NMCF report recognises the need to move supported decision-making to the forefront of practice. However, the authors do also acknowledge that investment in raising awareness and understanding may not be enough in and of itself – needing a greater level of planned transformation to support the MCA’s successful application across healthcare.
This raises the question of why Mental Capacity Act training is not already standardised or mandatory in everyday practice to ensure quality of content and competencies? There is also then a lingering question around the quality of the courses that are already currently available from various healthcare training providers, with many courses that I have taken myself not including sufficient detail on how to actually assess capacity.
Quality training on the MCA
As a healthcare professional, I have taken part in many courses both online and face-to-face on this topic over the years, and have found the quality of content to vary greatly, with many existing training programmes focusing mainly on the origins of the Act and a brief overview of the assessment itself, without teaching the practicality of how to assess.
This lack of high quality training provision around the MCA was one of the main reasons that led us to found Mental Capacity Ltd, drawing on our years of experience working in this field to provide relevant and timely training that includes practical workshops on how to assess capacity and how to document assessment to a high standard.