Pigs in clover

I am happy as a pig in clover this morning, as those lovely folks at Emerald Journals let me have a peek at the latest edition of The Journal of Adult Protection, which is entirely given over to discussing the Mental Capacity Act 2005 (MCA).

There’s a paper by Lynne Phair and Jill Manthorpe from the Social Care Workforce Research Unit at King’s College London.  The paper describes a study on the knowledge and use of the MCA amongst staff at an acute hospital trust.  It wasn’t great news I’m afraid, they found that:

‘Analysis of survey data and interviews revealed limited confidence and knowledge about the Mental Capacity Act 2005 and uncertainties about its relevance to clinical practice. In relation to safeguarding, there was limited realisation of the potential of the Act to uphold the rights of patients lacking capacity and staff responsibilities. MCA training had not made a great impression; hospital policies were inconsistent and lacked coherence.’

The Social Care Workforce Research Unit have produced a number of interesting studies on how the MCA is bedding down which  you might like to look at.

A paper by Matthew Gough and Lianne Kerlin discusses the limitations of training on the MCA in residential care homes, and makes a number of recommendations for improvements.  They found that training on the MCA in abstract was less likely to be effective, and they cautioned against one-day away-day type training which was divorced from the workplace. Training needs to be ‘bite sized’ and ‘an integral part of work in the workplace’.  This is a pretty important finding as, in my experience, many people working in care services will learn about the MCA on an away-day with a large group of other people from other services, provided by external contractors.  Whilst this might be a good way to introduce a person to the principles of the MCA, it can be hard to transplant this learning back into the workplace.  The MCA requires ongoing critical reflection on workplace dilemmas and practical issues, which will need to be facilitated by (knowledgeable) managers themselves.

There’s a paper by solicitor David Hewitt, and DOLS-obsessives will probably guess what he’s discussing from the title: ‘Objection, purpose and normality: three ways in which the courts have inhibited safeguarding’. Yes, that’s right, it’s a critique of the Court of Appeal’s decisions in Cheshire West and Chester Council v P [2011] and P & Q [2011].  Typically, Hewitt has an interesting take on why ‘There is something deeply dubious about the whole issue of normality’, and the paper is well worth reading.

Alison Faulker delivers a compelling argument for The Right to Take Risks, commenting:

Disabled people and service users have quite different concerns about risk to those of the professionals and the regulatory bodies acting on their behalf. Many people talked of the fear of losing their independence, of asserting their rights and the fear of powerlessness in the face of bureaucracy and (sometimes) uncaring staff.

Faulkner’s article is based on a piece of research she did for the Joseph Rowntree Foundation on service users’ views of risk in adult social care.  I am ashamed to say I had missed this piece of research, but I have rectified that now and signed up to the JRF’s email alerts so this embarrassing oversight doesn’t happen again.  One of the things I found quite interesting about both papers by Faulkner is the characterisation of the MCA as promoting ‘shared decision making’, when strictly speaking the MCA is a mechanism of substituted decision making – albeit one where the person who “lacks capacity” should be “involved” in the decisions.  I spend a lot of time chatting with and reading literature by disability rights campaigners in connection with the Convention of the Rights of Persons with Disabilities (CRPD), where there is a growing rejection of the very concept of ‘incapacity’ and mechanisms like the MCA which permit decisions to be taken on behalf of disabled people by others.  I’m always struck by how little these debates have percolated down into domestic disability rights politics.  Most disability rights organisations and survivor networks domestically accept the MCA fairly uncritically, and are comfortable distinguishing between those disabled people who “have capacity” and those who don’t.  Some push for ‘fusion law’ as a progressive alternative to the Mental Health Act, whereby only people who ‘lack capacity’ could be detained.  I’m not saying they’re wrong to hold these views, just that they might want to look into these international debates about Article 12 CRPD in particular, which certainly gave me a lot to think about.

And finally, there is a paper by Alison Brammer discussing the role of the Court of Protection, various challenges it faces (particularly the matter of resources), and various policy issues like the tension between ‘privacy’ and ‘transparency’ in its procedures and publications.  It would be a great paper to read if you were new to the Court of Protection and wanted to read something with a little more balance than the usual “secret court” stuff in the newspapers.

So, it’s a great special issue.  If (like me), you’re really greedy when it comes to publications on the MCA and the deprivation of liberty safeguards, you might also want to check out the journals Social Care and NeurodisabilityAdvances in Mental Health & Intellectual Disabilities and Tizard Learning Disability Review which also have a number of interesting articles on those subjects.  If you’re not at a university (or a university with access to these), and find the price for an individual article a bit steep, I recently discovered I could get hold of any journal article from my local library for only £3.50 on inter-library loan (and they were usually pre-photocopied for free!).  It might be worth checking that out if there’s anything you’re desperate to read.

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5 thoughts on “Pigs in clover

  1. In the UK the physical disability movement developed in way that was entirely separate from mental health 'survivor' movement. The aim was organisations of disabled people- rather than for them.

    Having worked in the field at this time there was such a separation that the two areas, (possibly physically disabled people were concerned about the 'does he take sugar' attitude that they sought to change), with physically disabled asserting their rights to mainstream life, as perfectly mentally able to self determine. This at a time when they were freeing themselves from earlier the 'medical model' of disability. The development of a para Olympics typifies the direction of travel.

    Mental health has not moved so far in this approach for obvious reasons- stigma, the growth of psychiatry in all its forms, the enduring or fluctuating picture controlled through the health model, so the medical model still remains a central reference point.

    I am not surprised to note that the disability groups are not critical of the MCA- because physicaly disabled people have little to worry about and have kept to a social model as distinct from the medical / control model pertaining to mental dysyfunction.

    Other countries perhaps have different issues in terms of 'control' of disabled people which allows activists to speak against oppression in a wider sense of equal rights for those with and without capacity.

  2. Hi Anonymous,

    I think you're right that survivor movements have developed differently in some respects to physical disability movements, and both of those to self-advocacy movements for people with intellectual disabilities. Even within those factions there are the potential for different perspectives, different interests. I've sometimes worried that some elements within all these movements take a rather utilitarian approach to prioritising the interests of the more capable over people with more profound disabilities or who are in more danger, which just mirrors the overall utilitarian dynamic that disabled people as a whole are subject to.

    The Article 12 debates can get pretty bogged down by those who think there is no such thing as incapacity, at all, ever, and people should have full rights to self-determination all the time, and those who are very paternalistic and think frameworks like the MCA are the best we can do. I think there are some cases where it's very very difficult to do without 'incapacity', but these are far, far, rarer than we think, and the MCA has proliferated a very potent idea with very, very few checks and balances.

    The problem is, this is a conversation that can't happen. Those who are of a more paternalistic bent are less inclined to acknowledge the MCA is out of control, meanwhile many campaigners on CRPD are reluctant to acknowledge that incapacity might sometimes exist in a way that's not easily ameliorable to support. Even if that's just a short term situation, it could be a crisis or an emergency of another kind.

  3. Hi Lucy

    Although the issue of incapacity may exist for some, albeit more rarely than the MCA would allow, I think the main concern seems to be about feeling a need to 'protect the vulnerable' at all costs from anything which seems normal and involves risk. Yet the whole of life is risk, capacity or incapacity and nothing is predictable.

    People who are drunk are arguably incapacitated mentally when they do something they would not if not drunk- but we do not stop them generally from doing so by use of the MCA.

    Whether someone fully understands or not, unless they are deaf and blind they live in a world where they see others and want to be like them. I saw this when working with people with learning difficulties. I would rather see 'buddy relationships' be promoted as natural, non monetary relationships through volunteers to help keep people generally safe than controlling their lives through legislation.

  4. On the drunkenness – I bet ambulance and A&E use the MCA on people who are under the influence and refusing treatment fairly frequently, but I take your point. The key difference is that they aren't followed around by staff acting like their conscience-come-keeper.

    I think buddy relationships would certainly work for a lot of people, and I definitely agree that there is an attitude of 'protect at all costs'. Part of this results from the hammering services get when anything goes wrong. But there are people who need more than a buddy system, like P in the Cheshire case, for example. I don't know how we introduce 'bright lines' to help distinguish scenarios where people really do need to be kept safe from those where people take the risks we all encounter in our lives. The trouble is, if there is a line it needs to be very clear with robust safeguards to stop it slipping, and we're not really at a point where we know how to formulate it.

  5. Where you seek 100% guarantee of protection for those that fall into the 'incapacity' scenario these tensions will exist and cause control of those who need less of this.

    This mirrors the child protection arena where increasingly the fear of missing 'abuse' is leading to some spurious / unfounded reasons for taking action to 'protect', because judgements are skewed due to the mind sets / inexperience of the staff making them. This has consequences for those at the receiving end of these judgements, as you well realise, also for those deemed to lack capacity by the same types of staff.

    The people holding power in Britain have taken a route which has become rather extreme in the lives of its citizens. Not a good place to be and has social consequences. No regulatory systems can protect as things are so disjointed with statutory agencies covering up their inadequate/ poor 'safeguarding' work when they are concerned with cost cutting the very services that need to be under continuous scrutiny for abusing / harming or neglecting.

    A few pockets of good work do not amount to a system that is other than failing yet legal systems pushing 'protection'.

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