Jill Manthorpe @scwru Social Care Workforce Research Unit Jill.manthorpe@kcl.ac.uk

The Challenges of Embedding the MCA in

Practice: what the research does or doesn’t say

14/08/2015 Kirklees 2015

This morning’s focus

• Practice focus – no need for researchers to say ‘it is all very complicated’, ‘more research needed’ – this builds on our Evidem and LoCS studies.

• Focus on MCA but not Deprivation of Liberty Safeguards (keep eye on this - Law Commission consultation paper - Summer 2015)

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2005 – A Titanic Year

• Third Labour administration

• London terrorist bombings

• New Orleans Katrina Flood

• Pakistan earthquake

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Risky business

What practitioners say about world prior to MCA:

• Never a risk free world

• Huge variation in approaches

• Hard to protect

• Loudest voices heard

• Little paperwork!

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What we’ve learned

• Importance of Code of Practice – not Regs • Beware quick amendments (eg DoLS) • Disturbed hierarchies • Slow to get going • Local variations • Importance of case law and Judge speak • Social work self-critical (others not so much) • Should implementation be longer/different? (Source: Evidem studies, Manthorpe, Samsi et al)

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MCA and Safeguarding

• Risk up front and transparent

• Disputes and conflict exposed

• Not just social work roles eg BIAs, IMCAs

• Prosecutions few but potential

Evidem studies

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Lasting powers of attorney (LPA)

Risk as a Right

- To appoint whom we wish

- They decide

- They know

- Often encouraged

- Numbers growing

- Safeguarding safeguards

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Delivery failure?

“The MCA was a visionary piece of legislation for its time, which marked a turn in point in the statutory rights of people who may lack capacity...with the potential to transform the lives of many. However, its implementation has not met the expectations that it rightly raised. The Act has suffered from a lack of awareness and a lack of understanding. The empowering ethos has not been delivered. The rights conferred by the Act have not been realised.” House of Lords Select Committee on the Mental Capacity Act, March 2014

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Addressing change and challenge

The charge sheet

• Various legal points (many related to DoLS)

• House of Lords review (expectations not met, practice variable)

• Legal points or fundamental problems?

• Implementation errors?

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Government response and resources

Following Government's response to the House of Lords report on the MCA, the Department of Health (DH) and partners:

• Held a Chief Social Worker Seminar (March 2015)

• Added new SCIE Directory materials

• Set up National Mental Capacity Forum.

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Specifics of current & planned changes

1) More and revised guidance and tools 2) Raising of awareness of MCA 3) Government to improve professional

training. 4) Part of commissioning, regulation and

inspection. 5) More Lasting Powers of Attorneys (LPAs) 6) Law Commission consultation

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Risk of seeing this as simple implementation problems

• Ten years on – new language + ethos

• An area of case law development /change

• Better informed public but with diverse views?

• Key part of professionals’ repertoire? Being MCA literate or anyone’s game?

• Getting in gear for Human Rights debates? 14/08/2015 Kirklees 2015

MCA and Safeguarding

• Care Act emphasis on outcomes

• So too can safeguarding emphasise outcomes

• MCA offers framework for proxy and best interests decisions

• Need for MCA rigor and records

• Still fine balances

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Acknowledgement and Disclaimer

This presentation presents independent research funded by the Department of Health

The views expressed in this presentation are those of the authors and not necessarily those of the Department of Health

Thank you for listening –

Do ask for copies of papers referred to

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