Another piece of the puzzle

I am a social worker based in a large local authority practising as a senior practitioner/best interests assessor in a specialist 'deprivation of liberty safeguards' team. And a major part of my role is to support professionals working in a range of different care and treatment settings to understand and implement the Mental Capacity Act 2005 (MCA).

The Act gives direction as to when and how a person's mental capacity should be assessed in relation to a specific decision (the two-stage test). If the person is deemed to lack capacity, the Act sets out a statutory checklist of factors that must be taken into account when making a best interests decision ?for the person.

It also states the decision-maker for most of a vulnerable person's day-to-day actions is normally the carer most directly involved with them at the time (including care staff, friends and relatives). However, where there are decisions about treatment or more major care issues, a doctor, nurse or social worker may be deemed to have that role.

The term "best interests" is not defined in the Act as there are so many different types of decisions and actions that this might cover. For social care workers the most common areas include:

• where a person lives, either permanently or temporarily

• financial management

• setting up/facilitating a package of care, perhaps domiciliary support and/or direct payments and/or day care, such as social activities, matters of moving and handling, and personal and domestic tasks

• using technical aids and telecare equipment

• managing behaviour that challenges services

• contact issues with family/friends/carers, particularly where there are concerns or disputes; and

• decisions relating to safeguarding procedures, known previously as adult protection.

So what is set out in the best interests checklist? In summary, the following must be deliberated, as specified in the MCA Code of Practice:

• Working out what is in someone's best interests cannot be based simply on someone's age, appearance, condition or behaviour.

• All relevant circumstances should be considered when working out someone's best interests.

• Every effort should be made to encourage and enable the person who lacks capacity to take part in making the decision.

• If there is a chance that the person will regain the capacity to make a particular decision, it may be possible to put off the decision until later if it is not urgent.

• Special considerations apply to decisions about life-sustaining treatment.

• The person's past and present wishes and feelings, beliefs and values should be taken into account.

• The views of other people who are close to the person who lacks capacity should be considered, as well as the views of an attorney or deputy.

For many social care workers the best interests checklist contains similar principles to the support planning tools that are used, such as person-centred planning. The latter is an approach where a life-planning model enables the service user to increase their personal self-determination and improve their own independence. Therefore, for most care workers, the checklist is not a massive leap from their everyday practice.

Balanced view

However, particularly with complex/major best interests decisions, social care workers often need to employ additional approaches to assist the process. For instance, a best interests meeting can be held to which all relevant people attend, which, as appropriate, may also include the service user. The different options regarding the decision are outlined, then a balance sheet approach is adopted so that the positives and negatives of each scenario are weighed up.

This is often a really helpful process, identifying the facts of a situation. For instance, I recently attended such a meeting where professionals and family were considering the residency options for a service user who was in emergency respite at a nursing home.

In conjunction with the best interests checklist, the options considered for the person were:

• to remain at the nursing home as a permanent resident

• to move to a different nursing home as a permanent resident

• to have a shared package of care: spending some time at home and some time at the nursing home; or

• to return home full time with a package of domiciliary care and support from family.

The social worker had a gut feeling that returning home would not work, but after we looked at the pros and cons of each option, it was evident that there were not any particular risk factors or obstacles preventing this.

Act impact

In the six years since its enactment, ?I believe that the MCA has undoubtedly brought clarity to this area of work. However, I believe it has been slow ?to embed in day-to-day practice. ?(This is also borne out nationally as ?the Care Quality Commission announced in March 2013.) My own observations are that training / briefing sessions for workers on the MCA are only the beginning of the implementation process.

I believe the best way for workers to develop their understanding of this legislation is when they are enabled to learn experientially, which is something our team supports. Furthermore, some of the decisions that social care workers are involved in are so incredibly complicated that they require significant experience and skill to negotiate.

No easy answer A fictitious case study of a complex best interests decision includes some of the daily dilemmas that social care workers face. Suppose Mr Cook lives in his own flat. He has a diagnosis of paranoid schizophrenia and is supported by a social worker. He has been assessed as lacking the mental capacity to manage his everyday financial affairs (assessment was completed by the social worker, who is deemed to be the decision­maker). Mr Cook is currently subject to safeguarding procedures because he is giving his weekly benefit money to local teenagers that call at his property. He hears voices telling him that if he does not give this money away, his adult children are going to be killed. Treatment (medication and talking therapies) have been unsuccessful in assisting Mr Cook to move on from this delusional belief. So what are the options? What might the best interests decision be? Mr Cook is very clearly expressing a wish to continue giving his money away, but this is driven by the delusional belief that his children will otherwise be killed. However, the social worker is concerned that Mr Cook is being abused financially, leaving him with little money to survive on. It is probable that further longer­term work on this might be required before a best interests decision can be made (e.g. perhaps specialist input from a community psychiatric nurse to complete person-­centred risk assessments). But I have some thoughts. Option 1: The adult care department looks after Mr Cook’s money Positives: He will have a better quality of life, able to buy more food, go out, etc. Negatives: He will probably become very distressed if he is unable to give his money away, concerned that his children will be killed. The risk that he might act ‘to protect’ his children would need to be considered/assessed. The situation would very likely have an adverse impact on Mr Cook’s mental health – he might relapse. This could result in him being admitted to hospital. In the longer term, the latter might impact on his ability to return to his flat. Option 2: Mr Cook continues to look after his weekly money Positives: His belief that his children are going to be killed is contained and his mental health remains stable. Negatives: He will have inadequate money to live on. As a vulnerable person, who lacks capacity on this matter, he continues to be exposed to financial abuse, which is possibly a criminal offence. Social care practitioners are involved regularly in best interests decisions, many being straightforward and non­contentious. However, as highlighted, some of these can be incredibly complicated with no easy answer. If you were Mr Cook’s adviser, perhaps acting as deputy for his financial affairs, what would be your view on the most appropriate best interests decision?

Sarah Orton is a social worker for Derbyshire County Council