The Application of the MCA 2005 in Social Work Practice
Research type
Research Study
Full title
The Application of the Mental Capacity Act 2005 in Social Work Practice.
IRAS ID
247399
Contact name
Rebecca Burden
Contact email
Sponsor organisation
Cardiff University
Duration of Study in the UK
3 years, 5 months, 30 days
Research summary
Summary of Research
The focus of this study is the practice of social workers who have a statutory role in assessing need and risk, and their application of the Mental Capacity Act (MCA) 2005 in their daily work. Mental capacity can be defined as the ability to make choices and decisions. Where people are assessed as lacking capacity to make a specific decision, the Act provides a legal framework for third parties to make substitute decisions, in their best interests, on their behalf.
The House of Lords Scrutiny Committee (House of Lords Scrutiny Committee 2014) evidenced that despite the empowering ethos of the MCA, many professionals do not meet the statutory duties of the Act, with case law providing further evidence of this. With predictions that two million people across England and Wales may at some point lack capacity (Care Quality Commission 2015), this research is concerned with the practical implementation of the Act by social workers' employed in adult services of Local Authorities (LAs), with the view to contributing to best practice guidance.
Through the nature of their work, social workers have a key role in upholding people’s human rights and challenging discrimination, particularly where they may lack capacity to make decisions independently about their care.
This study plans to use observational methods to witness social work intervention with service users in action. Research participants will therefore include both social worker, service user and any carer, relative or other person supporting them during an assessment. The research will include participants whose capacity to make decisions is in question, and this is likely to include some adults who lack capacity consent to participate in research. Enhanced understanding of the application of the MCA has the potential to benefit this population, particularly where it explores the views and experiences of the person themselves.Summary of Results
‘Supporting capacity for decision making in everyday social work practice’
Introduction
This report provides a summary of research undertaken by Rebecca Burden to explore how social workers’ support people to make decisions in their everyday practice. This research was part of my self-funded Professional Doctorate (Social Work) studies at Cardiff University which finished in June 2024.About the research
The discrimination and inequality that disabled people experience in accessing their rights has a long history and is entrenched in society. Part of social workers role is to challenge such discrimination and oppression and advocate for people’s rights (Social Work England 2019).
The Mental Capacity Act 2005 is one piece of legislation that protects people’s rights to make decisions for themselves, whilst also providing a legal framework for third parties to make substitute decisions for people where it is evidenced that they lack the mental capacity to make a time and specific decision. Whilst the Mental Capacity Act 2005 came into force in 2007, there is lots of existing evidence to show that inadequate time is spent on enabling people to make their own decisions.
How social workers understand and apply their legal responsibilities associated with this Act is the area of interest. Specifically the research focus was on how people with cognitive impairments are supported to make their own decisions as is their right.
The research questions were:
1. How do social workers understand the duty of ‘taking all practicable steps’ to help people make decisions for themselves under the Mental Capacity Act 2005 (s1(3)); working together with additional duties to involve the person and support their decision making under the Care Act 2014?
2. What do social workers do to maximise a person’s capacity to make specific decisions?
3. How do social workers view third parties’ influence on a person’s decision making?
4. What are the challenges, tensions and enablers to social workers providing support for decision making?
5. What support is desired and beneficial from the perspective of a person in contact with services and/or the consultee in relation to decision-making? This research explores the knowledge and practices of social workers employed in statutory adult social care services in a local authority in England. It also includes the perspectives of the people they are employed to support.Participants and location of study
The research took place in a local authority in England. The local authority was selected because it held adult social care statutory functions and employed social workers.
The research findings are based on ten individual social worker interventions, seven of which were observed. These were supplemented by pre-and post observation interviews with the involved social workers; post-observation interviews with four individuals being supported and/or their consultee. The observations and interviews took place between 31 October 2019 and 27 February 2020.
The observations were paused because of the Covid-19 pandemic. Between 20 April and 7 May 2021 eighteen social workers participated in six focus groups. Although not part of the original research design, this enabled sufficient data to be collated whilst maintaining people’s safety.What are social workers understanding of their legal duties to support decision making?
Social workers told me about the core legal frameworks that underpin the ‘support principle’ (Burden, 2024, p.3). In addition to the Mental Capacity Act 2005, the Care Act 2014, Equality Act 2010, and human rights legislation were all referred to. Though terminology differed, supported decision making was described as an activity that runs throughout social workers’ interventions, as was consideration of mental capacity. Social worker participants talked about the practicable steps they view as central elements to supporting decision making. These included:
Knowing a person, their history, lifestyle, hopes and aspirations;
Individualising communication;
Time and opportunity to build relationships;
Partnership working with the person drawing on support, their family, and carers;
Collaboration with multi-agency partners which for example, enables the gathering of information for a holistic assessment; access to communication support through Speech and Language Therapy;
Providing salient information about the decision;
Time, for example consideration of the best time of day for the person to make decisions; time for multiple visits; time to process decisions;
Education, for example on how to budget money;
Positive approach to risk, informed by a human rights approach;
Resources, which included being able to explore tangible options and provide people with a real choice between those.What do social workers do to support decision making?
Of particular interest is that the ‘practicable steps’ for supported decision making that social worker participants described to me were not fully reflected when I observed them in practice. It is in no way suggested that there was a deliberate attempt by social workers to mislead. Rather, the complexity of applying legislation in everyday practice, the design of the health and social care system, and the limits of available resources, all impact on social workers ability to practice in line with their professional values.Barriers
Communication – social workers were largely reliant on their verbal communication during interventions, with frequent use of professional jargon. No written or other format of information was left with people summarising the salient information or next steps.
Limited use of ‘appropriate person’ (Care Act 2014, s.67(5)) or independent advocacy (Care Act 2014, s.67(2)) meant that some people did not have independent support. This also breaches statutory duties.
Family / friends, who are potentially best able to support with communication, were often excluded by social workers due to concerns about undue influence.
Risk prompted social work intervention. The physical safety of older adults
and people with learning disabilities appeared to be a high priority.
Power imbalances within relationships were seen to dampen the voice of the person drawing on support.
Salient information for decision making was variable, and a tendency for abstract options to be discussed rather than tangible ones. Whilst this is largely attributed to the design of the social care system, it impedes social workers ability to work in partnership with people and support informed decision making.
Whilst social worker participants talked about the importance of time for a range of reasons, they experienced organisational pressures to complete interventions swiftly.
Care and support options are difficult to source which impacts on choice available to individuals.
Systems restrict social workers’ ability to support decision making. The local
brokerage system only releases one option at a time; state funding approval process is bureaucratic; funding pot is limited.
Demand is higher than social work capacity which impacts on time for practice.Enablers
Individualised communication maximised two-way communication e.g. pictorial information; support of Speech and Language Therapist.
Involvement of family / trusted relationships, and/or advocacy.
Time to build rapport; for relationship-building; for multiple contacts/visits; to consider decisions; to educate; to explore options; to process decisions and for reflection.
Concrete care and support options that people are able to choose between.
Ability to visit accommodation or other services, or meet with prospective carers.
Non-reliance on state funding enhances choice.
Legal literacy of professionals and family.
Acceptance of risk as a right of passage to adulthood for young people.What support is desired and beneficial from the perspective of a person in contact with services and/or consultee, in relation to decision making?
Trust in relationships was important. Fundamentally, people wanted to be supported by those they had established relationships with; those who knew them and who they trusted; people they could discuss decisions with but did not take over.
Being able to trust social workers was also important, but something that has to be proven over time on an individual basis. Consistency in social work support facilitates this.
Being trusted was also greatly appreciated, including being respected to make choices that others may disagree with.
People want to be listened to; to have their wishes honoured; to receive support in working through life’s challenges.
People wanted social workers to share their knowledge in navigating the complicated health and social care system, and assist them in identifying real options available to them so they can make informed decisions.
Being supported to view tangible options such as accommodation was noted as essential to being able to make a decision, as was time to think things through.Recommendations
Practice:
An ‘appropriate person’ (Care Act 2014, s.67(5)) to be identified at first contact where an assessment of need (ibid, s.9) is required and it is clear that the person is likely to have difficulty in being involved in the assessment, and care and support planning process (ibid, s.67). In their absence, a referral for an independent advocate to be made (ibid, s.67(2)).
Brief written summary, or alternative format, of salient information to be left with individual’s at the end of social worker contact when information about specific decisions have been discussed.
Detailed practice guidance to be drafted to provide greater clarity as to when an ‘appropriate person’ or ‘independent advocate’ should be present during social workers’ interventions.
Regular peer group supervision to share examples of supported decision making; to be open to peer challenge that ‘all practicable steps’ (MCA, s.1(3)) have been taken before moving on to substitute Best Interests (MCA, s.1(5)) decision making.
Supervising managers to audit mental capacity assessments for evidence of supported decision making.
MCA training further developed to include scenarios where social workers would be the decision-maker under the MCA.
‘Relevant information for different categories of decisions’ (Ruck Keene et al. 2024) guidance to be used to identify the salient information needed for a range of specific decisions, as directed by the courts.
A central electronic location for tried and tested resources to be shared, for example, the easy-read tenancy agreement that was used by SW4.
Pertinent case law summaries to be disseminated to all social workers, not just Best Interest Assessors.Policy
Greater scrutiny should be placed on how the ‘support principle’ has been met and exhausted before third parties are permitted to proceed to substitute ‘best interest’ decision making.
An ‘appropriate person’ should be identified at people’s initial contact with adult social care where it is known that the individual has a cognitive impairment that would meet the MCA criteria. In the absence of an appropriate person being identified or available, a referral made for Care Act 2014 advocacy.
Given the power of relationships, choice of support should be promoted so that relationships of trust are available.
Information relevant to the decision should be provided in additional format(s) to support verbal communication.
Training plans will need to consider how to translate knowledge to practice in what is a complex and subjective practice. Use of scenarios is suggested by participants, as is case law updates.
There seems to be a conflict between the guidance in the MCA Code of Practice to involve others, against social workers’ concerns about bias and undue influence of family and friends. Clearer guidance for professionals around involving others are therefore recommended.More information
The full thesis is published online: Burden, R., 2024. Supporting capacity for decision making in everyday social work practice (Doctoral dissertation, Cardiff University). Supporting capacity for decision making in everyday social work practice -ORCAReferences
Care Act 2014. c. 23. Available at: https://gbr01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fclick.pstmrk.it%2F3ts%2Fwww.legislation.gov.uk%252Fukpga%252F2014%252F23%252Fcontents%252Fenacted%2FNBTI%2Fu7G8AQ%2FAQ%2F04dd9f40-0350-428b-ad3d-05f7dd809380%2F1%2Fq4fL-jpsox&data=05%7C02%7Csocialcare.rec%40hra.nhs.uk%7C424c3356ec6e4fc2b22808dd7c1b03a3%7C8e1f0acad87d4f20939e36243d574267%7C0%7C0%7C638803177642070337%7CUnknown%7CTWFpbGZsb3d8eyJFbXB0eU1hcGkiOnRydWUsIlYiOiIwLjAuMDAwMCIsIlAiOiJXaW4zMiIsIkFOIjoiTWFpbCIsIldUIjoyfQ%3D%3D%7C0%7C%7C%7C&sdata=cj%2BcwZMopNVnkLFf9lZteT9NHDULM1giwyLn5NKhn6I%3D&reserved=0 [Accessed: 2.01.2024].
Burden, R., 2024. Supporting capacity for decision making in everyday social work practice (Doctoral dissertation, Cardiff University).
Equality Act 2010. c.15 Available at: https://gbr01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fclick.pstmrk.it%2F3ts%2Fwww.legislation.gov.uk%252Fukpga%252F2010%252F15%252Fcontents%2FNBTI%2Fu7G8AQ%2FAQ%2F04dd9f40-0350-428b-ad3d-05f7dd809380%2F2%2F7CpwHohlge&data=05%7C02%7Csocialcare.rec%40hra.nhs.uk%7C424c3356ec6e4fc2b22808dd7c1b03a3%7C8e1f0acad87d4f20939e36243d574267%7C0%7C0%7C638803177642095384%7CUnknown%7CTWFpbGZsb3d8eyJFbXB0eU1hcGkiOnRydWUsIlYiOiIwLjAuMDAwMCIsIlAiOiJXaW4zMiIsIkFOIjoiTWFpbCIsIldUIjoyfQ%3D%3D%7C0%7C%7C%7C&sdata=XZJ1Zk7nKCzk2Dt3oF76d59vL7Cfv5Znu38vaenLdZM%3D&reserved=0 [Accessed 2.01.2024] Human Rights Act 1998. C. 42. Available at: https://gbr01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fclick.pstmrk.it%2F3ts%2Fwww.legislation.gov.uk%252Fukpga%252F1998%252F42%252Fcontents%2FNBTI%2Fu7G8AQ%2FAQ%2F04dd9f40-0350-428b-ad3d-05f7dd809380%2F3%2FiwCmTvQdhI&data=05%7C02%7Csocialcare.rec%40hra.nhs.uk%7C424c3356ec6e4fc2b22808dd7c1b03a3%7C8e1f0acad87d4f20939e36243d574267%7C0%7C0%7C638803177642109614%7CUnknown%7CTWFpbGZsb3d8eyJFbXB0eU1hcGkiOnRydWUsIlYiOiIwLjAuMDAwMCIsIlAiOiJXaW4zMiIsIkFOIjoiTWFpbCIsIldUIjoyfQ%3D%3D%7C0%7C%7C%7C&sdata=ZAi9MJqNDQpTWYA8KHGkJtbME2sEopna7CqkYM9n0ag%3D&reserved=0 [Accessed 2.01.2024] Mental Capacity Act 2005. c. 9. Available at: https://gbr01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fclick.pstmrk.it%2F3ts%2Fwww.legislation.gov.uk%252Fukpga%252F2005%252F9%252Fcontents%2FNBTI%2Fu7G8AQ%2FAQ%2F04dd9f40-0350-428b-ad3d-05f7dd809380%2F4%2FGlYrs2pDSx&data=05%7C02%7Csocialcare.rec%40hra.nhs.uk%7C424c3356ec6e4fc2b22808dd7c1b03a3%7C8e1f0acad87d4f20939e36243d574267%7C0%7C0%7C638803177642123114%7CUnknown%7CTWFpbGZsb3d8eyJFbXB0eU1hcGkiOnRydWUsIlYiOiIwLjAuMDAwMCIsIlAiOiJXaW4zMiIsIkFOIjoiTWFpbCIsIldUIjoyfQ%3D%3D%7C0%7C%7C%7C&sdata=PxXE95I9tBaN9QFMzdiiA1X%2FRedBDdWYUmu6WwFfvcY%3D&reserved=0 [Accessed 2.01.2024] Ruck Keene, A., Butler-Cole, V., Allen, N., Lee, A., Kohn, N., Scott, K., Edwards, S. Eds. 2024. Guidance Note: Relevant Information for Different Categories of Decisions. Available at: Mental Capacity Guidance Note - Relevant Information for Different Categories of Decision May 2024.pdf (39essex.com) Social Work England. 2019. Professional Standards. Available at: https://gbr01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fclick.pstmrk.it%2F3ts%2Fwww.socialworkengland.org.uk%252Fstandards%252Fprofessional-standards-guidance%252F%2FNBTI%2Fu7G8AQ%2FAQ%2F04dd9f40-0350-428b-ad3d-05f7dd809380%2F5%2FqQCHcFdCPd&data=05%7C02%7Csocialcare.rec%40hra.nhs.uk%7C424c3356ec6e4fc2b22808dd7c1b03a3%7C8e1f0acad87d4f20939e36243d574267%7C0%7C0%7C638803177642135623%7CUnknown%7CTWFpbGZsb3d8eyJFbXB0eU1hcGkiOnRydWUsIlYiOiIwLjAuMDAwMCIsIlAiOiJXaW4zMiIsIkFOIjoiTWFpbCIsIldUIjoyfQ%3D%3D%7C0%7C%7C%7C&sdata=urFT5HThl983C%2BHbAJu7y5suDex%2FOAcbROQfR899o%2FE%3D&reserved=0 [Accessed 5.02.2023]REC name
Social Care REC
REC reference
19/IEC08/0003
Date of REC Opinion
18 Mar 2019
REC opinion
Further Information Favourable Opinion