So 10 years after the implementation of the Mental Capacity Act 2005, it can sometimes be hard to feel hopeful. Recently, I had a conversation with a health professional who told me that they didn’t need to assess the capacity of anyone on the ward they worked on ‘because they all had dementia’. Moments like that, in 2017, can make one wonder if we really have made as much progress as we think we have, but then, I think of the look on their colleagues’ faces when they said that and I realise that although we are shamefully not far enough along the road of embedding the Act, even 10 years, we have made such enormous steps that we shouldn’t take for granted.
Sometimes it’s almost hard to remember what it was like, working – as I did – in an older adults’ mental health team before the implementation of the Mental Capacity Act. We have become so used to those phrases of “best interests” and “unwise decisions” that it is hard to imagine what things were like before the established frameworks were in place.
The answer is, there were no established frameworks. We did our best, of course we did. We made decisions on behalf of other people every day, certainly in my team where we worked with many people who had dementias and cognitive impairments – but decisions were made referring to common law and duty of care. The Mental Capacity Act gave us the framework to allow risk. This push in the law led to real, if not immediate paradigm shifts in the health and social care worlds and a shift that is still struggling to take hold in some areas. The idea was that we were starting from a position of assuming capacity. This might not seem so revolutionary but decisions of capacity, such as they were, were made on the basis of diagnosis. It wasn’t done maliciously by professionals, at least I hope not, but it was done defensively.
The Mental Capacity Act embedded the importance of limiting those life-changing decisions made by professionals to the absolutely necessary ones and established guiding principles which underwrote all the decisions made. It’s hard to quantify how much this changed (and improved) practice. But it did. We had to actually document why we had taken the decisions we did. I remember, the not infrequent decisions I was responsible for making about moving people who had advanced dementias, into residential care when there were no family members or friends around to share that decision. I tried. But it felt like the lives of people who I was working with were very much in my hands. I remember a woman I worked with for a while and visiting different care homes with her to help to make a decision. While she was not able to express preferences to me, it was left to me to make that decision of where she would live the rest of her life.
With a Mental Capacity Act, the same woman would have the right to an independent advocate and my decision about which placement would be better documented with a duty to look at best interests – and even consider whether a placement was the best decision at all. It’s hard to quantify but one of the real impacts of the legislation was a rethinking around assumptions of residential and nursing care.
I compare that decision with another one made, after 2007, where another older woman with an advanced dementia I was seeing also was assessed from hospital as needing ‘placement’. Again, she had no family or friends but I had worked with her before her hospital admission – following a fall – and knew despite her confusion that the only place she wanted to be was at home. The legislation and framework enabled us to push back against the drive to move her to a placement and to take the very real risks that the return home entailed. The Act promotes risk as a part of life. She did move home and had support at home for a number of months before she died. I worried way more than she did about her safety and well-being but there’s no doubt in my mind that her final months were happier as a result. Would the first woman have moved to a residential care home if the Act had been in place? I don’t know but the decision would have been better documented and more robustly considered taking into account the right to take risk.
So here we are, ten years on. The Mental Capacity Act is sometimes dismissed as complicated but it’s the simplest ideas and concepts. It isn’t complicated at all. It doesn’t need endless courses. It needs a shift in the power dynamics away from professional knowledge and towards individual rights. That is what has proved to be complex. The idea isn’t but the change in attitude can be.
For the next ten years, well, I just hope if I walk into a hospital in 2027, there’s less worry about knowing the law and more appreciation of getting the principles so they are less learned and more lived. That would be a good place to be.