Using the Mental Capacity Act in complex cases

The purpose of this paper is to explore the way that practitioners apply the 2005 Mental Capacity Act (MCA) in complex cases involving people with learning disabilities who cannot make some key decisions by themselves. Like many qualitative studies it began with a felt sense that practitioners were struggling to apply the clear framework set out in the Act to real life situations, and that some of the decisions they were faced with did not fit neatly into the linear, cognitive model of decision making set out in the MCA and its accompanying guidance.

The study was conducted under the aegis of the Office of the Public Guardian (OPG) during 2010‐2011. A number of “complex” cases were obtained from Social Services, Primary Care Trusts and other organisations and subjected to thematic analysis. The current paper focuses on the 16 cases that involved people with learning disabilities.

A number of issues were identified that underlay the complexity of the cases examined. The cases drew attention, in particular, to the way in which practitioners were confronted with mounting concerns as opposed to single, discrete decisions, with the risk that decisions could be delayed until positive choices were much less available.

The aim of the study was to support the use of the Act in these situations and to give practitioners confidence in applying its principles across a wide range of diverse circumstances. Although the original study specifically related to the English legislation, the factors that led people to consider a case “complex” would apply equally in other jurisdictions. The study also shed light on difficulties that arise when intervening in less formal ways.