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It’s The Law. If You Want To

June 28, 2016

I spoke recently at an MCA conference. The title of the conference was “Embedding the Mental Capacity Act”. I want to point out that I’m not knocking the organisers or any of the people present, who all seem committed to getting it right. But “embedding”? The MCA is over 10 years old.

One of the speakers asked for a show of hands of who was familiar with the MCA Code of Practice. About 1/3rd of the 150 strong audience were unfamiliar with it. The speaker also talked a few times about “if you use the MCA…..”. I don’t think for one moment that he believed the Act is optional but that sort of language can seriously give the wrong impression. It’s not a choice. It’s the law.

Matt Graham, who has done more than most to raise the profile of the MCA, tweeted last week, that lots of people still see the MCA as a “tool”. Same thing. It suggests something for your professional kit bag that you can pull out if you think it might be useful. It’s not a tool. It’s the law.

I don’t understand how, in social care, the law can be ignored. Or, and I think this is probably more the case, not even be introduced to the people expected to carry it out. Between 1987 and 1999, I was the training officer attached to the housing benefit department of a London LA. During that period the Poll Tax was introduced that meant some serious retraining for every member of staff. I don’t think I would have been able to get away with, come 1994, saying, “I’m sorry. I’m still embedding the Poll tax regulations”. The law around Housing Benefit was constantly changing and my job was to receive all the circulars from the DHSS and teach the new law. My job was a mix of constantly running courses for existing staff about new legislation and updating the induction course to incorporate the new legislation for future new starters. Anything less and I would probably have been sacked.

Amongst the questions I was asked at the end of my talk were: “Your story was five years ago. Do you think the same mistakes could still happen?” After quietening down my hackles, I mentioned three of the 7 Days of Action dudes, Eden Norris, Stephen Andrade and Tianze Ni. They’ve all been in ATUs for several years and the MCA hasn’t touched them at all. Why? Do the professionals in their cases not know that the MCA and DoLs exist? Or have, post Neary vs Hillingdon, the professionals come up with cunning ways of getting round the pesky nature of the MCA and putting the client first. Those three dudes are all held under the Mental Health Act and I’ve never heard the MCA mentioned in any of their cases.

I was also asked why are families so ignorant of the MCA and don’t push for their rights to be upheld. Come off it. The introduction of the MCA starts at that time when people are in transition from children’s services to adult social care. Your whole world has been thrown up in the air. Or you feel like you’ve just wandered off the edge of a cliff. It is also the time as we know from the evidence, from mid to late teens that the ATU vultures start circling. Knowledge of the MCA at this time would be crucial but how are families expected to know of its existence? You don’t. You’re too busy finding things for your transitioned son or daughter to be doing with their adult life; wrestling with personal budgets; scouring the country for suitable support teams. Unless someone tells you or you stumble across it, The MCA won’t figure on your radar.

If I go into a pub today and light up a cigarette, I know that I’m breaking the law and shouldn’t complain too much if I’m punished for it. Those simple, straight forward rules just don’t apply in social care.

Did Moses have as much trouble “embedding” the ten commandments?



From → Social Care

  1. John permalink

    I think you make a really valid point here Mark. MCA is still widely misunderstood and underused, to say nothing of DOLS, which is a complete mess, even despite my concerted efforts to interpret its intricacies.

    That said, I met Stephen Andrade some years ago while working as a support worker, before he went to hospital. Although i do not know him now, if his presentation has been unchanged since that time, a MHA admission did seem like what was required. He was a lovely boy then, but one with a great deal of problems which presented a significant risk, both to himself and others. Steven’s story shows that the system can, and does, get it very wrong. But this does not mean it is wrong in every case.

  2. Shirley Buckley permalink

    Mark – the Mental Capacity Act does not exist. In 2014 it was declared not fit for purpose. The Law Commission is now trying to sort something out, but the judiciary (Charles) has stated that they cannot administer the Act until the government provides the Court with more money. The Law Commission’s recommendations will not be published until……? Do you think this government (government????????) is going to do anything about this ? The Mental Capacity Act is not the law – it is illegal.

    • That’s not quite right. At the House of Lords review, the MCA was seen favourably. It was DoLs they saw as not fit for purpose. The Law Commission are reviewing DoLs, not the whole MCA.

  3. Dear Mark
    The simple answer to your last and most telling question is clearly YES, and we can see all around us that these commandments still struggle to embed into our daily lives! So, we have some evangelising still to do with the public awareness of what seems so obvious and clear. Your message reminded me of a posting that Lucy Series posted of mine some 4 years ago – and it has really helped me to make a decision to re-commit to this agenda. As one of the first DoLS coordinators I had the role of spreading the word, and I often felt a little like John the Baptist (rather than Moses) crying out in the wilderness of public and professional ignorance. I was shuffled sideways within my Health Board to take on another service, and now, three (or is it four) years later – a little burnt out and feeling very guilty I have taken some time out to reflect on where my loyalties and professional commitment should lie. Thank you Mark, your kick up the backside was just what I needed. I have a few months to get things sorted as I am floating around the inland waterways till January ( ) so if you, or Lucy have any great ideas about how I can rejoin this struggle and still pay my mortgage then please feel free to let me know.
    Thanks again.

  4. Shirley Buckley permalink

    Martin has just, after 10 years, got an RPR who is empowering Martin to take his DoLs to the Court of Protection. This is the very first person in 10 years who has known exactly what the MCA is about, and is working to put it in practice. 10 years!

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