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Improved mental capacity law training wanted 'by majority of staff'


The vast majority of health and social care staff want a better understanding of mental capacity legislation aimed at protecting vulnerable patients, according to a new survey.

The 2005 Mental Capacity Act sets out when, and how, patients can be detained, restricted or receive treatment without their consent, where it is deemed to be in their best interests.

Nearly nine out of 10 professionals taking part in a snapshot poll in England and Wales said their knowledge of the legislation was not as good as they would like it to be, despite 86% saying they have had to assess whether a person is capable of making their own decisions.

More than half of the respondents (56%) believed that knowledge and application around the act was “average to low”.

“The pressures that people are under can lead to information overload”

Mike Hostick

Nearly all (96%) said expert guidance would provide confidence in the workplace.

More than two thirds were concerned about fines and reputational damage resulting from non-compliance with the legislation.

The complexity of the law can create confusion, according to Mike Hostick, a mental health nurse and chief executive officer of Desuto, the company that carried out the survey, which also provides online tools to support compliance with the legislation.

“The pressures that people are under can lead to information overload,” said Mr Hostick.

He stressed that all nurses needed to know about their legal duties, not just those working in mental health settings.

For example, hospital nurses must be sure not to treat patients – such as those with learning difficulties - without their consent, unless specific processes are followed, he said.

The findings from the snap survey – based on responses from 100 health and social care workers who use the legislation in their work, including nurses - come at the same time that applications under the act to place restrictions on patients has risen to an all-time high.

A Care Quality Commission report published last month highlighted official data from NHS Digital that revealed Deprivation of Liberty Safeguards (DoLs) applications rose to 195, 840 last year – the highest ever number. Of those, nearly three quarters (73%) were approved.

The report - The state of health care are adult social care in England 2015/6 - said there were “pockets of good practice” but that some hospitals and care home providers were failing to adequately fulfil their obligations under the act.

It found that better training, clear policies, consistent documentation and a culture of “person-centred care” led to improved compliance.

The Department of Health has asked the Law Commission to review how DoLs applications should be regulated, and a report is expected in December.


Readers' comments (10)

  • michael stone

    DoLS is one of the harder parts of the MCA to grasp, but even the simpler parts of the Act pose problems: the biggest problem, is that, and pardon my language here, 'accepting the MCA as it is written poses huge challenges to any staff who are also having 'safeguarding responsibilities' imposed on them: to be frank, the MCA is 'a sod to apply' if you are a clinician'.

    I endlessly point this problem out, on theBMJ - there needs to be a lot of work done on improving understanding of the MCA, and in my view some recent developments are going in the wrong direction (such as some work led by the RC(UK) - very flawed if you think in terms of the MCA).

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  • If I recall rightly The MCA is one of the most poorly pieces of written legislation in the UK to the date. Maybe its the legislation of MCA that's the problem, including DOLs. This stuff actually slows down the ability to provide care in real time. DOLs might be great but in the meantime the patient might of already walked out the ward door!

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  • Medication must not be given covertly without a DOLS authorisation, Best Interest meetings must be held involving ALL the clinicians, workers, family and friends where decisions such as medication that may be inappropriate or location of care are involved (and there are some NHS areas where I would recommend that family/friends actually take a lawyer and minute-taker with them to the very first meeting!).

    It seems likely that anti depressant meds are used for vulnerable people who are not depressed clinically just low understandably because they are getting neglect as standard treatment. These meds can cause kidney damage. Elderly patients often have kidney disease anyway. So applied in this manner they hasten death. If you know of this, anonymously inform the CQC.

    Health and welfare authorities can and sometimes do blatantly
    disregard the law in order to detain and advance the death of vulnerable people. Not that they are card-carrying nazis but they may as well be.

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  • All indications are that we have a long way to go before the principles and practices of the MCA become part of everyday health and social care practice. We feel it is critical to see a minimum national standard set as a baseline from which to develop.

    Our survey also showed that 92% of those who took part in the poll believe that tools and technology can aid the decision making process.

    To see the results of the survey see

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  • michael stone

    ANONYMOUS 8 NOVEMBER, 2016 9:27 PM

    I'm not really interested in DoLS (although I sent some submissions to the Law Commission Consultation, which this article is about).

    I'm interested in the patient autonomy described by the MCA (and it is very clear indeed: section 3, and 25(4)(c)), which can be described as Informed Consent or as Supported Decision-Making but most definitely is NOT 'shared decision-making', and 'best interests'. The MCA is not 'poorly drafted' but it is unclear about things which cannot really be made any clearer: for example, section 4(6) makes it clear the factors within best-interests decision-making, but NOT 'how you actually get to a decision from the factors'.

    The Act understands this problem - 4(9) does not require that a best-interests decision-maker justifies the decision, merely that the decision-maker could justifiably make the decision.

    However, what is very clear is that the MCA has made decisions about whether a potentially clinically-successful treatment should be applied, into 'non-clinical decisions'. Clinicians struggle with this - although 'Montgomery' has hammered home the point more recently (and Montgomery was not a ruling about the MCA - but it did reinforce the 'patients make their own decisions' point).

    Essentially, the MCA has enshrined in English law the new situation of 'mentally-capable patients make their own decisions' and it has changed the situation when patients lack mental capacity to 'best-interests decision-making has to consider the individuality of the patient, the patient's current and previous 'approach to life', and that can sometimes justify a best-interests decision which results in the patient's death', from the earlier 'sanctity of life takes precedence'.

    You cannot in fact fit 'soft medical paternalism' to the MCA (something doctors are very reluctant to accept), and the self-determination of the MCA runs directly opposite to any idea that 'safeguarding' can apply to mentally-capable patients'.

    It isn't the Act which is the problem - it is 'fitting the working lives of professionals to the Act, as the Act is written':

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  • michael stone

    I recently posed a question in a BMJ rapid response at:

    Would anyone care to answer it ?:

    Imagine a wife who is suffering from advanced dementia, and who is clearly not mentally-capable to decide whether she should start taking a tablet every morning. The GP, her husband and the wife are discussing this. If the wife is to actually take this tablet every morning, it would have to be given to her by her husband. The wife might dislike taking tablets, without understanding any possible medical benefit: whoever is 'the best-interests decision-maker' has to consider that dislike, which is challenging – but who is making a best-interests decision here ? Is this two different best-interests decisions ? Do both the GP, who would prescribe the tablet, and the husband who would be the person administering the tablet, have a best-interests decision to make: and is that the same decision, or are they considering two different questions ?

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  • I agree with the above post and would add that I think the MCA is a great piece of legislation and the associated code is accessible.
    It is accepted that health and social care staff still experience significant difficulty in understanding the act and putting it into practice.
    I would extend the comment on 'soft medical paternalism' to a wider spectrum and that the majority of staff would choose to protect the person first and their right to self determination second despite what the law says.
    I have a great deal of sympathy for front line health and social care staff who are having to battle with the ethos of large state organisations who require compliance with eth MCA but who have not embraced the principles of the act into their organisational practices.
    I know if you asked most staff what would they want for themselves or their loved ones when they lacked capacity they would favour much of what the MCA stands for but there seems to be a disconnect when these same people get to work and I can’t help feeling that this must be due to the work environment in which they find themselves.
    I recall going to a safeguarding conference at which there was a call for staff to be trained to be compassionate. I was astounded - we know how to be compassionate at home with our friends and families don’t we? So surely we can translate this to the work place? Of course we can unless there is something there that prevents us or that we aren’t ‘’rewarded’ for this fundamental trait.
    At Desuto we have decided that we need to lower the bar a little for staff to begin with and to give them a helping hand. Our tools set a fundamental standard for compliance and reporting meaning there is no excuse for failing to apply the basic principles of the act and to explain how these were applied in writing.
    We believe that if everyone used our tools, the understanding and reporting standards would rise for over 90% of the workforce which will be a great step forward and one that the House of Lords would feel is well overdue.

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  • michael stone

    Hi Mike,

    You've hit the nail on the head with:

    'I know if you asked most staff what would they want for themselves or their loved ones when they lacked capacity they would favour much of what the MCA stands for but there seems to be a disconnect when these same people get to work and I can’t help feeling that this must be due to the work environment in which they find themselves.'

    I sent in a second comment to the same BMJ responses thread:

    One of my reasons for sending that one in, was that I wanted to get this onto BMJ:

    'Some years ago, I was discussing EoL behaviour with a senior paramedic, over a lengthy period. It struck him, during the discussions, that he had an elderly and very frail relative, and that if this relative collapsed and arrested at home, any 999 team summoned would almost certainly attempt CPR. The paramedic told me that he and his family would be horrified, by such a CPR attempt. The NHS is still adopting the wrong approach for EoL at home: it is determined to ‘follow a records trail [which has been ‘audited’ by the GP or by a senior nurse]’. The paramedic sent an e-mail to me, about 5 or 6 years ago, and he wrote:

    ‘We are a long way from doing this (although I would!!) But at least we are beginning to agree .. Resus in my opinion is just a clinical intervention like any other skill and should not be seen as a mandated right by health care professionals .. After all if we were not called it would not have been done!! The simple answer is to ask why were we called and how can we help!’

    The paramedic was wrong, unfortunately: if anything, the role of ‘the records’ has been strengthened, and ‘listen to family carers – who have been involved long-term and who understand everything except narrow clinical issues better than you as a newly-involved 999 paramedic can understand the situation – and be guided by what they tell you’ - has not been enshrined within guidance.'

    I find that a few years ago, I was mainly 'banging on' about people failing to understand what the MCA says - but these days I'm increasingly complaining that 'you cannot 'safeguard the mentally-capable' and also comply with the MCA': and I'm worried, with more involvement of social care in end-of-life, that the situation will get even worse (my instinct is that clinicians understand 'patient consent' more strongly than social care staff).

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  • To Mike Hostick:

    Mike, I've briefly browsed 'Desuto'.

    If you read this, I would be interested in swapping a few e-mails with you, if you are up for it - you'll find an e-mail address for me in my piece at:

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  • michael stone

    Please note - the previous comment is mine: not 'Naomi Hryb' whoever that is !

    I (Mike Stone) will re-post it, because I would like to exchange a few e-mails with Mike Hostick:

    To Mike Hostick:

    Mike, I've briefly browsed 'Desuto'.

    If you read this, I would be interested in swapping a few e-mails with you, if you are up for it - you'll find an e-mail address for me in my piece at:

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