The requirements of the Mental Capacity Act are vitally important for those in the health and social care sectors, but they are taking root too slowly on the front line.
Having the capacity to make decisions is something many of us take for granted. We make scores of decisions daily - from the trivial to the life changing. But for many people using health or social services - for example, those with a learning disability or mental health problem - life is not so simple. Their carers or staff may need to become intimately involved with their decisions, large or small.
When the Mental Capacity Act came into force last October, it was heralded as an important piece of legislation that would protect everyone's right to make their own decisions whenever possible, and also clarify good practice for health and social care staff. Nine months on, however, it seems much more needs to be done to get the act fully implemented on the front line.
Capacity to decide
One of the core principles of the act is that no-one should be assumed to lack the capacity to make a particular decision, whether due to their disability or condition, or because they lacked the capacity to make an earlier decision.
Every decision, and every person, is different. So assessing capacity must be an ongoing and open-minded process. There are clear guidelines for carers and staff on how they should do this, how to support those in their care to make decisions, and how to make decisions on their behalf if necessary. The fact that each decision is different means they need to be confident about these guidelines and clear about their obligations.
This is why it is so worrying that the Department of Health last month issued a circular to local councils, care trusts and strategic health authorities stating that "the large cultural shift" needed to roll out the act has "hardly begun". There is little evidence, it continues, that the monitoring of, training for and auditing of capacity assessments are happening in a comprehensive manner.
Breaching the law
The circular also admitted that only around half the number of people expected had been referred to an independent mental capacity advocate - a statutory service providing independent advice for vulnerable people who lack family and friends to help with major decisions on their treatment or social care. This suggests that many people entitled to the service have not been offered it. Each instance of this omission is a breach of the law.
That we find ourselves in this situation is not that surprising. Research carried out last year by the Mental Health Foundation and Foundation for People with Learning Disabilities found that staff felt underprepared for the act and unclear about capacity issues in general. Only 12 per cent of staff surveyed gave a full definition of mental capacity similar to the one used in the act.
Many staff were unclear about when capacity assessments should be made. Of the staff surveyed for the report, Whose Decision?, 98 per cent said they would like more training on mental capacity. Clearly, there are bottlenecks in the system that need to be addressed.
There are things that can be done. We need to ensure coherent strategies are in place to communicate guidance and training about the act to frontline staff. Within each authority or trust, an audit is needed of current knowledge and training to identify gaps that need to be filled. More resources should be used to support service users and their carers in playing as full a role as possible in decisions about their care.
A lot of hard work went into making sure the Mental Capacity Act was accepted by a wide spectrum of stakeholders. The Making Decisions Alliance campaigned to make the legislation as progressive as possible. It was designed to protect the vulnerable and to be comprehensible to those expected to implement it. So it would be a tragedy if the act stalled at the implementation stage.
For more on the Mental Capacity Act, visit www.mentalhealth.org.uk