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Pedestrian crossing
A nursing home resident with early onset dementia had lost her awareness of road safety. Photograph: Eamonn McCabe for the Guardian
A nursing home resident with early onset dementia had lost her awareness of road safety. Photograph: Eamonn McCabe for the Guardian

What social workers should know about the Mental Capacity Act

This article is more than 10 years old
Jo Liveston
A lack of understanding of this legislation can negatively impact on vulnerable people

A social worker I recently met assessed an elderly man as lacking capacity to make his own decisions without speaking to him. The man was under the influence of alcohol and so the social worker spoke to his wife instead. Based on this one visit, they declared he lacked capacity. Plans were made for his care without speaking to him. The social worker even seemed surprised when informed they needed to visit again to make a proper assessment.

As a best interest assessor (BIA), my job is to assess if someone has been deprived of their liberty and whether this is necessary and proportionate or, as the title suggests, in their best interest.

I have seen numerous examples of extremely good and sensitive practice, but have also witnessed how a lack of understanding of the Mental Capacity Act can negatively impact on vulnerable people, such as in the example above.

The Mental Capacity Act specifies that every effort should be made to maximise a person's capacity to understand. This takes time and may involve measures such as providing information in a more accessible format, using interpreters, or ensuring assessment is undertaken at a time when the person is at their best. At times this assessment process extends to the decisions made by social workers about the care of vulnerable people.

Part of making an assessment is about trying to establish the person's wishes and feelings. When it is not possible to get them to tell you directly, then it is important to try to work out what their preference would most likely be. This might involve talking to people who know them well or looking back over previous records.

I recently dealt with a case involving a woman in her 50s who had early onset dementia and was trying to leave a nursing home. She was almost run over on a nearby road, having lost her awareness of road safety. Staff at the home had requested to be allowed to prevent her from leaving.

The resident could not explain where she was or why she was there. When I gave her this information, she could not remember it for more than a couple of seconds. She would not read anything written down, nor could she remember her previous home, yet she could indicate that she felt safe where she was.

In an attempt to establish a rapport, we talked about her life, where she had grown up, what she used to do at work and what she liked to eat. In common with many people who have dementia, she was able to recall much more of these longer term memories.

She told me that she had always enjoyed a fish and chip supper on Friday evenings. When I asked her if she would still like to have this treat, she got very emotional and told me she would love to but didn't think it would happen.

I was moved by such a simple yet meaningful request and was able to arrange for a staff member to go and buy it for her every Friday. Small adjustments to care can make a huge difference to people's lives.

In the end, the initial reason for my visit – a request to restrict her movements – was not necessary as her attempt to leave was a one-off. Yet attempting to determine her wishes had an unexpected and positive outcome, one that may have never happened had she not been assessed under the deprivation of liberty safeguards.

I have encountered numerous doctors and nurses who have commented that a person lacks capacity but seem to find it impossible to be specific about which decision they lack capacity for, as required in law.

Some think it is acceptable to conclude that a person "must" lack capacity due to the decision they were making being ridiculous or because they have a specific condition. Neither of these conclusions are legal.

I have also experienced many care homes and hospitals where staff think that if the building has external doors with entry systems that can only be operated by staff, then the people housed within have automatically been deprived of liberty. This is also untrue.

More worryingly are those establishments that do not have the faintest idea they are depriving someone of their liberty and do not refer for an assessment, or only do so if there is an objection is raised by the person themself either verbally or through behaviour, or by their family.

For an assessor to conclude that deprivation of liberty is taking place, it is vital to consider whether the objections are to the care regime. In the well-known Stephen Neary case, Mark Neary's wishes for his son to be discharged back home were refused and later found to be unlawful deprivation.

Just as the Children's Act puts the child's welfare at the heart of practice, so too social workers supporting adults have to make every effort to adhere to the social work code of ethics and the Mental Capacity Act.

Jo Liveston is an independent social worker, a BIA and a member of the British Association of Social Workers (BASW).

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