Decision makers fail to understand the Mental Capacity Act, undermining human rights

Many key decision makers whether it is Doctors, social workers or, dare I say it, lawyers do not apply the checks and balances in the Mental Capacity Act (MCA) legislation. This fundamentally undermines the rights of people who lack capacity and when poorly applied it, can be used as a draconic tool to control people who lack capacity.

The MCA is, in fact, a well drafted and effective piece of legislation on the whole, but there are clear problems caused by people in authority who have not even read the Code of Practice.

Let us break this down a bit further and address the issues at hand:

1. How does the person who lacks capacity challenge either the finding of incapacity or the decision itself? How do vulnerable people access the potential protection of the MCA?

2. The relationship between a solicitor and client is contractually based and if the person lacks capacity to enter into a contract, strictly speaking they are left without the ability to seek legal advice

3. There is a misconception that only doctors can assess capacity when in fact many doctors have never had any training in how to assess capacity

4. There is a misconception that capacity assessments and best interest decisions bind staff, when of course the role of D is time and decision specific

5. There is a misconception that the ‘next of kin’ possesses decision making powers by virtue of being ‘next of kin’. This is constantly reinforced by health and social services who ask people who their next of kin is. Why?

6. Professionals seem to spend a lot of time at ‘best interests’ meetings. There is often little or no evidence that before best interest decisions are made, that the relevant person has even been assessed. The first principle of the MCA is that all adults have capacity unless there is evidence they don’t. The term ‘best interests’ has become a holy grail and when a best interest decision is made by the best interests meeting that seems to bind subsequent action by professionals.

7. The most fundamental problem of all is linked to point 6 above. Health and social services professionals tend to make decisions by committee, whereas the MCA is about the individual responsibility of Doctors.

8. Problems are exacerbated by attempts by organisations to codify the MCA into operational procedures. This can have a stultifying effect. It can undermine the very principle that the buck stops with Doctors and decision making is time and decision specific.

9. Because the word ‘mental’ is included in the title there is an assumption that you do not need to incorporate the basic principles of the MCA into practice unless you work in the world of ‘mental’.

10. The Court of Protection is slow, cumbersome, expensive, inaccessible and dominated by interpretations of the law. It must be simplified to be made more accessible like the Mental Health Tribunal under the MHA.

If you would like to read Peter Edwards’ full submission to the House of Commons Select Committee please click here.