The Mental Capacity Act and Safeguarding

Blog by Trish O’Hara 24 January 2015

The Mental Capacity Act continues to be pivotal in safeguarding
Following The Care Act and The Care and Support Statutory Guidance (Oct 2014), it is clear that if we are to understand safeguarding, we must first fully understand The Mental Capacity 2005.
I was also pleased to see that the Fundamental Standards thread The MCA throughout and The Care Quality Commission have The MCA at the centre of their inspection process.
In 2005, I was thrilled to see the principles of The MCA and truly believed there would be a radical change in practice almost overnight – But it’s 2015 and some services are still failing to uphold the principles fully. Whilst, I understand why it is hard for providers to support an individual in their often ‘unwise’ decision making, and realise it challenges the tradition of care and the instinct for care providers to feel they have the right to stop a person making poor decisions – I find it is a constant revelation in the training room.
When I pose the idea that an individual with diabetes may want to eat 12 doughnuts, it is still considered neglect by the service providers to ‘let’ the person do so. I spend much of my time reminding people that they start with The MCA. Does this person have capacity? In line with the first principles of the Act, we must presume capacity unless we have proved otherwise – and our duty of care is to provide information, education, opportunity and choice to said person with capacity, who may continue to eat doughnuts and it is clear that the law protects their rights to do so. The evidence of our information, education, opportunity and choice is vital and of course the risk assessment. In fact, it would be neglect to deny the person the right to make their decision. Of course, if the person does not have capacity then the decision would be made in their best interests. This of course, is where the final principle of the Act takes main stage. Are we using the least restrictive approach? I am not sure it has been challenged enough. My hope is that the ‘new style’ CQC inspections will find a way of monitoring the 5th principle in action.
It is with all this in mind that I continue with the 6 key principles of safeguarding. The order of which is vital –
The Mental Capacity Act can clearly be seen in these principles. Starting with empowerment and prevention is a clever way to remind us who is at the centre of any decision and then our proportionate intervention which may need us to protect, if an individual is unable to make the decision – But, when we are protecting, it is essential we understand our responsibility to work in partnership and be accountable for our actions.
I love these principles – They make everything so clear.
And then ‘self neglect’ as a type of abuse – spoils it.
The empowered person, with capacity, makes unwise decisions that may be judged as self-neglect by others. Are we really to see this as an abuse? Is that useful? Especially, as the definition of abuse used in the Statutory Guidance, describes abuse as involving another person or persons. At what point are providers to consider self-neglect as abuse? I can imagine that will be when the individual is making lifestyle choices that the provider does not agree with or like. I am fairly convinced that the contributors who created the principles are not the same group who decided upon the changes to the types. It may have been more useful for us all, if they were.
As long as we truly recognise that in order to safeguard, we must uphold and understand The Mental Capacity Act – (DOLs), and we will all be on the right track.
Safeguarding is everybody’s business – so is understanding The MCA.

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