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Mental Capacity Act
What Will Have To Change, In General?
• We ‘do’ safeguarding adults, at present, on the basis of ‘vulnerability’, not incapacity, in a legal sense.
• Investigating people’s situation is perfectly legitimate if they are vulnerable – they may be eligible for services after all - but doing something interventionist is not, unless they lack capacity.
• We ‘manage’ perceived risks without considering, first, whether the person lacks capacity, in a legal sense, in relation to that risk. Why? Because we think we’ll be liable when something bad happens to the person…. regardless of their capacity!
• We think we can act in a person’s best interests, even if they do not lack capacity, whereas in that situation, their best interests are their business, not ours!
• We don’t write down what our reasons are, for thinking that we know better, or that people ARE capacitated, legally, to tell us to ‘go away’ and leave them to it.
• In so doing, we are inevitably interfering in some aspects of a person’s life, where they still have capacity to decide whether the pros outweigh the cons. And equally, walking away from some people who do need and deserve help because of their capacity issues.
• In law, our social services view of ‘risk’ only determines the contents of a care plan, not how a person lives their own life….
• Because it’s fashionable, we let severely incapacitated people’s behaviour, which may itself be lacking in any cognitive insight, convince us that a self-harming ‘want’ or an ‘urge’ should be supported or facilitated or not stopped – even though it’s incapacitated, legally. Eg self-neglect, or continuing to drink or abuse other substances even if the person has Korsakoff’s syndrome or is clearly delusional.
• We sigh with relief when certain clients tell us ‘No’ to services or to help – we presume that they too are capacitated, when it suits us.
• Or we say a potential client ‘refuses to engage’, without asking ourselves whether s/he has capacity to engage, and we deny services as a result of our opinion….
• A person can be verbally unwilling or uncooperative – but still legally incapacitated – so shall we just leave them to it?
• We make no distinction between decisions regarding our statutory functions and decisions about people’s own private lives – capacity is key for who is the decision-maker about the latter, but not for the former.
• We even let people’s views on contacting the police determine our reaction to concerns about abuse, regardless of the law of confidentiality and the exceptions to it and regardless of whether the person is capacitated or not, on the pros and cons of making that referral.
• We don’t help people to express themselves, by spending more money or time on letting them come to a capacitated decision. We make them go through our hoops, instead of going through theirs.
• We don’t know enough about occupation orders under domestic violence legislation, or housing law, to help people help themselves. What happened to good old social work advice and assistance??
• We rely on experts, for a view on capacity, who rely on the mini mental state test, which is non-specific.
• Many professionals fight shy of using the doctrine of necessity as a shield against legal risk, and demand misuse of the Mental Health Act… they just don’t know enough LAW.
• We don’t instruct these experts, whose opinions we need for the discharge of our own statutory functions, as to what the issues are that they need to explore, when assessing capacity. We accept blanket findings of incapacity, instead of issue-specific ones.
• We don’t even check out that they can communicate at the right level with the client, to be able to give us an expert view.
