Broken Bones are easier to fix than a Broken Heart

The 5 Principles of the MCA are well applied by social workers because they chime with our professional values. The Principles instruct us to be anti-discriminatory, to enable self-determination and to respect non-conformity. And that’s just the first three Principles! Social workers everywhere apply them to gain consent before every bit of intervention.

That the Act has not been fully understood and implemented across health and social care was one of the findings of the Select Committee’s post-legislative scrutiny in 2014. It is now getting on for ten years since the Act came into force yet we are still talking about some professionals not understanding the Act or not being aware of it. This is not acceptable. We are talking about a person’s legal rights being ignored by public servants.

Sometimes it is not that a professional is unaware of MCA but that they want to achieve a particular outcome, one determined without the person being involved at all.

I have been challenged many times about the findings of capacity assessments but on every single occasion it was where I had concluded that the person had the mental capacity to make the decision, never when the person didn’t have capacity. On those occasions they agreed with me. The same occurs when a woman with dementia agrees with the professional who says she should go in a care home; she has capacity. But if she disagrees with the professional… You know the rest.

Apart from upholding a person’s human rights and enabling autonomy, issues which trump any professional opinion about what is right or wrong for someone (otherwise people would never smoke cigarettes or drink alcohol!) there is also the small matter of professional respect. Last week I was stood next to a social worker on the phone, listening to her trying to explain to a nurse how she had enabled a person with dementia to make the decision to return home. The social worker didn’t say much and even from where I was standing, I could hear the nurse losing her temper until eventually the social worker looked up and me and said, “She just hung up on me.”

Can you imagine a social worker approaching a nurse on a ward and criticising her skills at assessing wounds or inserting an intravenous cannula? Or how about a social worker telling an occupational therapist that his stairs assessment was wrong? Social workers are not trained or qualified to complete these tasks and would be absolutely wrong to not give the professional respect our colleagues have earned. Even in the unlikely event they were present when those tasks or assessments were being completed, they would still not comment. And yet every week I hear from social workers who say that other professionals criticise their mental capacity assessments. Nearly always the other professional is not present so does not see what techniques the social worker applied in enabling the person to make the decision. It is not a bad idea to have others present so they can learn, but it is not always appropriate. But either way, it is shameful that one professional should feel able to openly criticise another, for example in an MDT meeting, about their professional conduct. And yet some do so without providing any evidence to show that they have also tried their best to enable the person to make the decision without success or without referring to what the 2005 Act actually says about identifying the decision maker.

So why do some professionals want the person to lack the mental capacity to make the decision? I have sometimes sidestepped these disagreements about capacity and instead suggested we imagine for a moment the person doesn’t have the capacity to decide. Then what? Because therein lies the reason. A capacity assessment which concludes the person cannot make the decision provides a means by which the person can be forced into what is perceived by the professional to be a less risky situation, even though it is against the person’s wishes and will make them unhappy. It is to use the MCA against the person.

Sometimes the professional says they have a duty of care towards the person, or it may be they are under pressure from family members or other colleagues for a particular outcome, or because a permanent move to a care home (for example) means a faster discharge from hospital or from a short stay placement. But more commonly it is because the professional doesn’t want to get into trouble; it is easier to prove a person suffered broken bones than a broken heart.

None of those reasons are in the person’s best interests. They are in the interests of other people.

Social workers have to be strong to resist these pressures but what can they do?

In my Local Authority we have, every week, an MCA Clinic and a Risk Enablement Panel, both of which provide support for social workers, often isolated in trying to uphold the human rights of the person. At the MCA Clinic, social workers can bring their MCA related queries, including their assessments for analysis, and are provided with written guidance. At Risk Enablement Panel the social worker gets management sign-off for a non-risk averse decision to be made for an incapacitous person, one which respects the person’s known wishes and feelings, is in the person’s best interests and is the least restrictive option. The person is of course encouraged to attend and we have a discussion about the consequences of one decision over another.

Why MCA? Until 2007 social workers with adults lacked the legislative backing with which to challenge oppressive practice and promote independence. Championing the Mental Capacity Act has become the raison d’être for social work with adults.

Edited from original in Community Care

See also in Community Care



Why MCA? (because CRPD?)


In the darkness you can find a light, if you look for one.  The UN Convention on the Rights of Persons with Disabilities (CRPD), which came into force in 2008, could be a light to illuminate social work with adults.  Upholding and further expanding the principles enshrined within the Human Rights Act (1998) and the Mental Capacity Act (2005) making a paradigm shift away from a welfare response or functional/medical perspective to a rights-based approach, ensuring that persons with disabilities have access and can participate in decisions that affect their lives and seek redress for violations of their rights.  

Crucially, it is a move away from persons with disabilities being considered as objects of charity, with social workers there to rescue or fix them.  As Beckett put it in his novel Molloy “against the charitable gesture [of social workers], there is no defense that I know of”.  It is time to shake off this image of the profession.  Social work has a unique specialism.  That specialism is human rights.  The MCA, in conjunction with the CRPD provides for a powerful legal framework for modern social work promoting rights based, relational practice.

In the UK, the CRPD is enshrined within the Human Rights Act (1989), the Disability Discrimination Act (2005) and the Mental Capacity Act (2005).   Article 13 CRPD significantly expands the positive obligations we must uphold to ensure justice.   Over 100 years since Josiah Wedgewood argued in 1913 that “our object.. is to secure justice for everybody” (campaigning against the draconian Mental Retardation Act), it still feels like we are long way from this when #JusticeforLB and supporters still have to fight for the rights of their family members to be upheld, even when it is upheld that serious failings contributing to neglect have occurred.  When it comes to adults with a learning disability, in adult social work, we still on a daily basis find that people experience fundamental breaches of their human rights.  

Take, for example, the right to participate in elections, to do something as fundamental to citizenship as casting your vote. Article 29 CRPD requires signatories to guarantee the same political rights and opportunities as non-disabled citizens.  There is no mental capacity test in relation to the right to vote.  Yet adults with learning disabilities continue to experience discrimination through suggestions that they lack capacity to participate.  Our best guess is that between a fifth and a third of adults with a learning disability turn out to vote in UK General Elections.  Arguments all seem to relate to a suggestion that adults with a learning disability will make “unwise decisions” about who to vote for, that they will be unduly manipulated into choosing who they like the look of the most, which will somehow undermine the whole process. Of course, the fact that people all over the world have been voting in elections based on who they like the look of the most for generations doesn’t seem to enter the minds of “gatekeepers” who are determined to prevent people who have a learning disability label from exercising the most fundamental of rights to have their voice heard and to influence decision making. 

Another example of the potential mind-shift and behaviour change which is required is writ large within CRPD Article 14 which provides that ‘disability shall in no case justify a deprivation of liberty’.  This should challenge all our thinking in social care about the framing of the Mental Health Act Amended (2007) which still includes autism and learning disability as a legal basis for detention.  Case Law which has helped BIAs post Cheshire West in applying the Mental Capacity Act (2005) has absolutely clarified that having a clinician tell you that you are on the autistic spectrum (which by definition means it covers everyone) or have a learning disability (does anyone even know what this actually means) is not a legal basis for authorisation of a persons liberty being deprived.  See also Article 23 which provides that ‘in no case shall a child be separated from parents on the basis of disability of either the child or one or both of the parents’.  The genius of the CRPD and the MCA is that as “professionals” we can no longer use a characteristic associated with a clinical label and use it to justify poor decision making.

For our colleagues in health, the CRPD is particularly challenging, perhaps Article 15 being the most difficult for them to reconcile with “no one shall be subjected without his or her free consent to medical or scientific experimentation”.   Yet case law emerging from the Courts is upholding that the person’s wishes, feelings and beliefs must be heard and upheld as central to decision making.  So called “unwise decisions”, which are the very central tenant of ‘sparkling lives’, filled with light, colour and happiness, should be our ambition in social care, not safe, protected and ultimately dull lives.  The Right to Happiness.  Wonder if that could be a light that never goes out ignited by the CRPD and fueled by the MCA?  

The practice implications are exciting.  This is what we came into social work to do (no body came into practice to spend ages behind desks filling in Assessment Forms).  The #unwisedecision campaign led by the @AdultPSWNetwork as a Call to Action on National Mental Capacity Day (15th March 2016) to highlight that Statutory Principle 3 of Section 1 of the Mental Capacity Act provides for the right to make decisions we as professionals may deem unwise without having capacity questioned. The series of 3 articles which @CommunityCare are published in support of MCA Day further explain why MCA matters.  People aren’t dying young from having too much risky fun.  

Faced with this, the question arises, what can I do on a local level about it?  We are taking positive direct action with this year’s Promote the Vote  campaign.  If you are prevented from participating in democratic processes, if you are denied your Article 29 CRPD rights, if you don’t register to vote, then you have no voice.  We feel really strongly that our job is to make sure people know about and understand their right to participate.

Our biggest challenge, however, is the understanding of our clinical colleagues in health services.  For too long they have understood that we are there to broker access to care.  Home Care.  Care Homes.  Respite Care.  In adult social work we may be on the verge of a paradigm shift, but our colleagues in health are not necessarily ready for us to make it.  In our Local Authority we are trying to help them with this.  We have run training on the Mental Capacity Act in Practice for nearly 1000 colleagues from health, housing, police and provider services.  We have brought in the fantastic @SteveBroach to further reinforce the messages about what the Courts are telling us about people’s wishes, feelings and beliefs being foremost in decision making.  We have also set up a Risk Enablement Panel just for the hospital, to support colleagues to understand that they don’t have to own risk, the person is an adult and if they want to go home, they can own their own risk.  After all, how risky really was it when Connor Sparrowhawk and Steven Neary said “I want to go home”?  On reflection, not risky at all, exceptionally, deeply sadly, capacious.  

So, if you were inspired by the MCA Call to Action – if you feel that the principles of the CRPD are why  you wanted to be a Social Worker – here are a few things you could do to be a great, rights based practitioner:  

1 – be part of Promote the Vote – help people know their rights and support them to get registered to vote.  What they do from there is is their choice.  But importantly, they are able to make it.  

2 – check out people in Supported Living homes are actually living real lives, make sure that the principle of “no bed times” is one that they experience.  

3 – Enable Risk.  Properly.  Encourage your managers and senior NHS staff to visibly support you by owning risk.  Risk is a part of life, it is part of growing and learning.  Make it a positive thing.  

4 – Refuse to be part of any “professionals meeting” that doesn’t include the person.  If appropriate support and arrange for independent advocacy and interpretation to help the person be involved and understand so that they can communicate their wishes, feelings and beliefs.  

5 – Recognise and celebrate your own humanity.  Making an #unwisedecision is something we all do.  It is part of being human.  Build an unwise decision wall and celebrate being part of humanity.  Learning by experiences which others think are wrong, risky or unsafe is part of life and how our lives are enriched.  Be that Social Worker who makes life better.  

And finally 6 – we aren’t the police.  Safeguarding doesn’t mean you have legal powers.  Section 42 of the Care Act is a duty to make inquiries only.  The MCA (2005) and the Human Rights Act (1998) are law – they provide the legal framework within which we operate.  Use them.



What’s your #unwisedecision (MCA Call to Action 15th March 2015) – Updated

National Adult PSW Network

National Mental Capacity Action Day – 15 March 2016

National Mental Capacity Action Day aim is to increase awareness of the Mental Capacity Act and to highlight good MCA practice. Click the link to find out more

National Mental Capacity Action Day – 15th March 2016

The purpose of the Action Day is to:

  • profile current best practice from around England and Wales
  • identify MCA improvement priorities for the coming year
  • gather commitments from attendees for projects and work to improve MCA implementation at the frontline.

How can you get involved with the MCA Action Day?

Why not join in with our national ‘Wall of unwise decisions’

Promote the day by joining in with our Twitter campaign to build a Wall Of Unwise Decisions. This initiative allows those working in social care or health and others to record their principle 3 unwise decision and share it to Twitter via #unwisedecision

When the majority of us make an unwise decision nobody generally questions or challenges our capacity. This may not be the case for all. Sharing and understanding our rights to make unwise decisions supports our understanding and application of the MCA and the rights of citizens. The Twitter feed and Great Walls are a fantastic visual aid to raise awareness around the empowering ethos of the MCA. The general idea is that human rights are for all and that the MCA applies to us all equally.

On the 15th we want to encourage as many staff has possible to use the hashtag and get their pictures uploaded. There are already over 30 Local Authorities and 10 Universities involved in this as well as a growing number of NHS Trusts.

Community Care magazine has volunteered to curate the tweets and present them for us. There will also be a number of articles and Blogs shared on the day to support the MCA Call to Action Day

You will find this template (#unwise temp) can be printed and used on the day. Individual photos and pictures of your wall as it grows will be fantastic. Who knows maybe we can even get #unwisedecision trending!

Check the #unwisedecison hash tag on twitter now for more info or see for ideas to help plan your event!

#unwise temp

Update February 2017

We have published an evaluation of the MCA Call to Action in the BASW Journal Practice: Social Work in Action.  Here is the link:

The Mental Capacity Act Call to Action: Online Development of Critical Rights-Based Social Work