15 January 2018, by Bethan Harris
The National Institute for Health and Care Excellence (NICE) is consulting on its draft guideline until 5th February 2018, with an expected publication date for the guideline of 16 May 2018. The draft guideline concerns people using health and social care services aged 16 and over. It is intended to help health and social care practitioners to:
- support people to make their own decisions as far as possible;
- assess capacity to make specific health and social care decisions;
- make best interests decisions and maximise the person’s involvement in those decisions.
The aim is not to provide comprehensive guidance on the Mental Capacity Act 2005 (MCA 2005) but instead to focus on areas where practice needs to improve and there is a paucity of guidance.
The guideline was commissioned by the Department of Health due to concerns about inadequate implementation of the principles of the MCA 2005. There is particular focus in the draft guideline on implementing s 1(3) MCA 2005 – A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success – by supported decision-making and, where a person is unable to make a decision, on involving the person in the best interests decision as well as some other significant recommendations.
The following is a brief resume of some of the main points in the draft guideline:
- There is an important first section on overarching principles. It includes the need for responsible bodies to ensure that all practitioners undergo training on the MCA 2005 and the Code of Practice and what this training should include.
- Health and social care organisations should have local policy and guidance on their tools for supported decision-making and assessing mental capacity.
- Also included in the overarching principles section are that information about the decision must be given to the person in an accessible way and records kept about people’s wishes and feeling and updated.
- The importance of independent advocacy is underlined both in order to enable people to make their own decisions and to facilitate people’s involvement in best interests decisions, and implying a need for an expansion of advocacy services.
- There is guidance on implementing supported decision-making in accordance with s 1(3) MCA 2005. This includes that a person should be asked how they want to be supported and who they would like to have involved in the decision-making. Reference is made to the Code of Practice, paragraphs 3.10 (all possible and appropriate means of communication must be tried to help someone make a decision for themselves) and 3.11 (helping people with specific communication or cognitive problems). Organisations should ensure they can demonstrate that they monitor compliance with s 1(3) MCA 2005 (1.2.18).
- There is a section on advance care planning (1.3). This means supporting people to set out their wishes in relation to future care and treatment decisions in advance in case they should be assessed as lacking capacity in relation to the decisions in the future. It recommends a practice, which appears would have very wide reach, that where a person has been diagnosed with a long-term or life-limiting condition advance care planning would be offered: “All health and social care practitioners who come into contact with the person after diagnosis should help the person make an informed choice about participating in advance care planning and if they wish to do so should facilitate this” (1.3.4.). It acknowledges the need to be sensitive to whether some people may prefer not to talk about this and would not wish to have an advance care plan (1.3.7).
- Joint crisis planning should be offered to anyone who has a mental disorder with assessed risk of relapse or deterioration and who his in contact with specialist mental health services (1.3.17).
- There is fairly detailed guidance on mental capacity assessments including the useful requirement for provision of “tailored information, including information about the consequences of making the decision or of not making the decision” and on the need for clarity about the person’s options. The guidance includes that a person has to retain the most important points only for the period of time necessary to make the decision (1.4.22); the person should be told that their capacity is being assessed and of the outcome of the assessment; and that lack of insight does not necessarily reflect lack of capacity, depending on the decision in question (1.4.23).
- Guidance on best interests decision-making includes the important requirements that all reasonable steps must be taken to help the person to be involved in the decision and that that there should be “clear systems in place to obtain and record the person’s wishes and feelings in relation to the relevant decision, their values and belief or any other factors that would be likely to influence them” (1.5.6).
There is much for discussion in the above which is not discussed here but as regards whether there is a need for guidance, it is widely recognised that the Act is not well embedded into practice in the health and social care sector. Clear practical guidance on implementing the key principles of the Act may help. The MCA 2005 ss 1 – 4 and the Code of Practice should be explicit points of reference throughout, for fear of the essential framework, which is well set out in them, getting lost in a sea of guidance.
As regards better implementation of the principle in s 1(3) MCA 2005, the Law Commission’s draft Bill published in March 2017 also seeks to further this aim – professionals would be required to document attempts to support the person to make their own decision or why it was not practicable to do so before making a best interests decision in certain key areas (or be deprived of the s 5 MCA 2005 defence) and there would be regulation-making power to devise supported decision-making schemes.
The consultation information is available here: https://www.nice.org.uk/guidance/indevelopment/gid-ng10009
 Mental Capacity Act 2005: post legislative scrutiny, 13 March 2014 and Law Commission, Mental Capacity and Deprivation of Liberty, March 2017