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Mental Capacity and Consent

This article explores another common mistake made by care providers, that of mental capacity assessments and consent. Despite the Mental Capacity Act 2005 having been in force for 11 years many people working in the care sector fail to demonstrate that they understand how the legislation and Code of Practice should be implemented in practice. This will not only result in adverse inspections by the service regulator it will also infringe on the human rights of people supported.

Some of the common errors that I see time and time again when undertaking mock inspections include:-

• Generic mental capacity assessments completed by the care provider rather than decision specific mental capacity assessments for different areas of care.

• Families being asked to “consent” on behalf of service users when the family does not have the legal authority to do so. In some cases the service user has the mental capacity to consent to their care and has not even been asked as the care provider and family have assumed that they cannot understand the information. This is in direct contravention of the 5 principles of the MCA Code of Practice.

• Mental capacity assessments completed by care providers in a rudimentary way, this especially true of mental capacity assessments completed via electronic care planning systems where the tick box Y/N is completed and the explanation is either completed incorrectly or not at all. It is so important that a narrative is provided to support the assessment of capacity. The failure to complete a mental capacity assessment correctly provides evidence of the lack of knowledge and understanding of the person completing the assessment. Often these are senior or managerial level staff which then has consequences for how well lead the service is.

• Failure to ascertain if any person has legal authority to act for a service user. This will be Lasting Power of Attorney, Court Appointed Deputy or maybe Enduring Power of Attorney. If these are in place then the care provider must be aware of these and would be wise to ask for copies for the service users file. Of course the care provider and their staff should know when such powers can be used and what decisions the attorney can make on behalf of the person.

• Care plans and risk assessments not being cross referenced to mental capacity assessments. For example, if a care plans states “I do not understand how to take my medication correctly and I need staff to administer it for me”, this should be backed up with a mental capacity assessment about the persons ability to make decisions about medication. Similarly, if a risk assessment identifies that a person is a risk of falling and a contributory factor is their choice of footwear. A mental capacity assessment should be used to determine if the person has the mental capacity to understand the potential consequences of wearing that particular footwear. How the care provider should proceed will depend on the outcome of the risk assessment. If the person has mental capacity for that decision then they can wear that footwear and this must be reflected in the risk assessment. If they do not have mental capacity for this decision then the care provider should make a decision based on what is in the service users best interest.

• Care notes not being used to provide evidence that the service user was supported in a way which was consistent with the MCA Code of Practice. If a service user chose to have cereal and fruit for breakfast then the care notes should record this. In many cases the care notes are perfunctory e.g “had breakfast”. This does not provide any evidence of choice, consent or person centred care.

• Care and support staff who have a limited knowledge of mental capacity and consent. I find that when asked to explain terms such as; mental capacity, best interests, consent and restraint, that many people either mix these up or fail to give any sort of explanation at all. If staff cannot demonstrate that they understand these most basic of principles how can they demonstrate that they can apply them in practice. Often care providers will cite recent training to defend their staff, this only makes matters worse! If staff had recent training in a subject and cannot then explain the subject, then the training was clearly not effective. I will cover the area of training in detail in article 9 of this series in a few weeks time.

So, how can care providers avoid making common mistakes such as those above. I have made some suggestions below.

1. Ensure that someone in the care service acts as the mental capacity lead. This person should be:-

a. Interested in the subjects

b. Willing to take on this role and responsibility

c. Trained and competent to undertake the role

d. Able to explain the subject to ; staff, service users and families

2. Provide care and support staff with appropriate effective training which is backed up with competence assessments and discussions in supervisions and staff meetings. I have developed a competence assessment form for mental capacity and if you would like a copy of this please email

3. During the initial assessment care providers should ascertain whether any of the following are in place:-

a. Enduring Power of Attorney

b. Lasting Power of Attorney

i. Property and affairs

ii. Health and welfare

c. Court Appointed Deputyship

i. Property and affairs

ii. Health and welfare

d. Advance Decision (living will)

e. Advance Statement

4. If any of the above are in place then copies should be obtained. If it is not possible to obtain copies then this should be reflected in the service users care plan. It is possible to apply to search the register to see if someone has a Deputy or Attorney action for them

5. When care plans and risk assessments are developed and/or reviewed this should involve the service user unless there are documented valid reasons not to do so, these include:-

a. They do not wish to be involved

b. They lack the mental capacity to be involved, this should be evidenced by a mental capacity assessment. However, the MCA and the Accessible Information Standard require that care providers take all possible steps to enable the person to be involved in decisions about their care.

c. It would not be in their best interests to be involved, this will need to be evidenced via a mental capacity assessment and best interests decision.

6. Care records should provide clear evidence of how the principles of the MCA have been implemented in practice. My next article (no5) will cover this issue alongside care plans and risk assessments.

7. Families should only be permitted to make decisions on behalf of a service user if they have the lawful authority to do so. This includes; signing care plans and day to day decisions. If they do not have the legal authority to make such decisions then a mental capacity assessment and best interests decisions may be used to show that the family member making that decision was in the service users best interests.

8. Care and support staff must be supported to understand how mental capacity should be implemented into practice. The NHS Safeguarding App has a useful section on Mental Capacity.

9. Ensure that your policy and procedures for Mental Capacity are; up to date, made available to people affected by them and implemented in practice.

10. Carry out or commission and audit of mental capacity and consent in your service, this will include the issues identified in this article, the audit should identify areas for improvement and develop an action plan. The person undertaking the audit should be competent to do so and be independent from the day to day running of this aspect of the service. I will cover the issue of audits in my article on Quality and Governance (no 10) in a few weeks.

11. Service users should be supported wherever possible to understand how mental capacity and consent affects them. They should also be supported to have as much involvement in their care as possible. On way of doing this is via an activity, details below

Consent activity

1. Convene a small group of interested people for a chat

2. Pose a discussion question such as “what is consent?”

3. Facilitate the discussion and guide them towards the following definition – giving permission for something to happen

4. Optional – using craft materials, paper, pens work with people to design a poster about consent. This can then be copied and made available to all people using the service.

5. Pose another question such as “what can affect your ability to give permission?”

6. Facilitate the discussion and guide them towards some of the following answers; health, understanding, families making decisions for you, staff making decisions about you

7. Ask “how can we make sure that your ability to make decisions is always respected and promoted?”

8. Facilitate the discussion and guide them towards; staff training, information for families, mental capacity assessments, good care plans, care records.

9. Optional – just as with 4 above you can make posters about 5 and 7.

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