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NHS England has published guidance to support the implementation of the Mental Capacity Act in acute trusts for adults with learning disabilities.
This guidance assists trusts and community providers in helping front-line staff meet their legal obligations under the Mental Capacity Act (MCA) 2005. It also offers advice on how to make reasonable adjustments and collaborate to support capacity assessment.
Leadership teams in NHS Trusts have been asked to ensure they understand the guidance, take the actions indicated and make these resources available to all frontline staff.
Resources include a checklist for assessing the mental capacity of someone with a learning disability and template forms for recording mental capacity assessments and best interests decisions.
What is the Mental Capacity Act?
Mental capacity is the ability to decide or take action on something that impacts a person’s life. It means a person can decide about their own care and treatment.
The Mental Capacity Act aims to promote and safeguard decision-making within a legal framework for people aged 16 or over in England or Wales who lack the capacity to make those decisions for themselves.
It works on five core principles: the presumption of capacity until proved otherwise, support for deciding with reasonable adjustments, the ability to make unwise decisions, a decision in a person’s best interests, and the least restrictive of their rights and freedoms.
About two million people in England and Wales are thought to lack the capacity to make decisions for themselves, including people with learning disabilities. They are cared for by around six million people, including a broad range of health and social care staff and unpaid carers.
Two-stage test for people with learning disabilities
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The guidance also provides advice on conducting a two-stage test for mental capacity in people with learning disabilities. Stage 1 assesses whether there is an impairment or disturbance in the functioning of the patient’s mind or brain, whether temporary or permanent.
If an impairment or disturbance is identified, Stage 2 evaluates whether this impairment is significant enough that, even with all appropriate support, the patient cannot make a specific decision when it needs to be made.
The guidance says that staff should collaborate with those who know the person well when dealing with complex capacity issues. This may include other doctors and nurses, learning disability liaison nurses, social workers, and family and carers.
It adds that families and carers often know the person best and can be a rich source of information about how to engage with them and what their wishes and thoughts might be. They must be engaged and kept informed, and, where appropriate, they should be offered access to support services such as advocacy and the Patient Advice and Liaison Service (PALS).
Family and carers must always be invited to a best interests decision meeting and their voice listened to.
Barriers to effective implementation
The guidance also highlights current barriers to the effective implementation of the Mental Capacity Act, including pressure to make quick decisions in busy clinical environments that may lead to shortcuts in capacity assessments.
There is also a lack of continuous, role-specific training on the Mental Capacity Act, including on issues like diagnostic overshadowing, which can lead to the perception of the Mental Capacity Act’s complexity and deprivation of liberty safeguards (DoLS).
In addition, other barriers include an incorrect assumption that certain conditions imply a lack of capacity and limited access to timely specialist advice and support for complex cases.
