- 06 January 2022
- 8 min read
Mental Capacity Act And Therapeutic Risk Explained
Stuart talks us through the varied and nuanced landscape of the MCA and Therapeutic Risk Assessment, explaining how you can navigate it successfully.
Topics Covered In This Article
Take a moment to think about the things that you've achieved in your life.
The things you're most proud of.
Maybe it's a qualification or learning to play a musical instrument.
Perhaps you lost a lot of weight, or climbed a mountain.
Whatever it is, I'm prepared to bet that it wasn't easy, that's why you're proud of it.
And there was always the chance, the risk that you wouldn't succeed.
Life is full of risk.
And to a large extent, our quality of life depends upon it.
If you weren't prepared to take risks, you'd never cross the road, leave the house, or even get out of bed in the morning.
And even then, you'd risk muscle wastage and precious hours.
What if I told you you couldn't take that cruise, or go on that foreign holiday for fear of shipwreck or plane crash?
How would you react?
Chances are you'd tell me to mind my own business and go anyway, because those risks aren't my business.
They're what I'm going to call individual risks because the individual with the capacity to decide has a perfect right to do so.
A relative of mine once tripped on a raised paving stone and shattered her elbow.
She now has some pretty nifty metalwork in her right elbow, and every winter she knows about it.
Well, along with restricted mobility, she also experiences significant pain when it gets cold.
The risk associated with that slightly raised paving stone wasn't an individual risk though, it was an organizational risk, because an organization, the local council, had a duty to manage it.
So my relative received compensation for her injury because she hadn't chosen, or even been aware of the issue until she fell in the street and shattered her elbow.
So individual risks are those risks we have a right to take.
Organizational risks are risks that organizations have a duty to manage. In health and social care, we often come across risky situations.
That's why care home staff check the temperature of bathwater before residents are lured into it.
Most thermostats in such places are restricted anyway to prevent scolding.
It's why radiators are covered and walk ways a well lit and free from obstruction, or at least they should be.
These are organizational risks.
The organization has a duty to manage them, but residents, patients and clients have the same rights in law that you have, unless of course, there's a legal reason to limit them.
Where Do Rights Fit In?
Rights are legal liberties.
And to misquote the Bible: “The law giveth, the law taketh away.”
Becoming a patient, resident or client is not a crime, and it doesn't automatically take away a person's legal right.
Neither does changing address.
So when an individual with capacity makes a decision to take an individual risk, that's their decision to make.
We can offer advice and information if we think it appropriate.
And we don't necessarily have to assist in their endeavours, but we can't prevent them because it's an individual risk, unless, of course, they lack the mental capacity to decide.
Then it becomes an organizational risk because we have a duty, assuming it falls within our sphere of practice to protect them from their own infirmities so far as we reasonably can.
That's where the mental capacity act and deprivation of liberty safeguards come into play.
That's the law taking away, if you like.
But only if that person lacks the capacity to decide. And remember, very few people lack all capacity.
You need to know whether they can make this particular decision at this particular time.
Making Smart Decisions
Not that they lack all mental capacity, it's much more specific than that.
The trick then is to help people to understand the individual risk that they're proposing to take.
If they can't understand it, then the risk becomes an organizational risk. In that case, the organization that creates the risk or activity for them must manage that risk to bring it down to manageable proportions.
This doesn't necessarily mean remove the risk, although it might, but it does mean we have to manage it.
Many care workers think that it's their job to prevent service users, patients, and clients from taking any risk at all, but this isn't possible.
In fact, even if it was possible to prevent people from taking risks, it wouldn't be the right thing to do.
Life without risk would be life without living.
Even doing nothing is risky.
The risk to mental health from boredom and changing routine is as great as the risk to our physical health from inaction and lack of stimulation.
Obviously, some things carry more risk than others.
An activity that involves crossing the road with supervision might be considerably safer than a decision to go skydiving, but the principle still holds. The task is to make the risk manageable.
Risk Assessment Principles
So, what are the principles of risk assessment?
Well, forget all the nonsense you read in the press about the nanny state and over the top health and safety rulings.
Most of them are at best, exaggerated and at worst, completely made up. According to the health and safety executive, there are five elements of good risk assessment and maintenance and five principles that risk assessment is not about.
These are ensuring that workers in the public are properly protected.
Providing overall benefit to society by balancing benefits and risks with a focus on reducing real risks, both those which arise more often and those which have serious consequences.
Enabling innovation and learning, not stifling them, ensure that those that create risks, manage them responsibly and understand that failure to manage risk is likely to result in robust action.
And enabling individuals to understand that as well as the right to protection, they also have to exercise responsibility.
Sensible risk management is not about creating a totally risk-free society, generating useless paperwork mountains, scaring people by exaggerating or publicizing trivial risks, stopping important, recreational and learning activities for individuals where the risks are managed and reducing protection of people from risks that cause real harm and suffering.
It's often useful to have a little checklist in your head to navigate your way through descriptions and negotiations about risk.
The Legal Side
And remember, there's a legal framework as well as a moral one.
So it always helps to be clear about your options.
First of all, ask, does the service user have the capacity to decide?
If they do, well, that's their decision.
Do we get involved?
And do we have a legal duty of care to a worker, to the service user or to the patient or to the public?
If they don't have the capacity to decide, then who will decide for them in their best interests?
It may be you or another member of the team.
And they may need an advocate.
If it's you, who advises you?
Or who advises the advocate?
And do you have a legal responsibility when fulfilling your duty of care?
The chances are, if that person lacks the capacity to decide, then yes, you do.
At the very least, you have a legal responsibility to inform the appropriate decision-maker.
So if having taken note of all of the relevant information, you make a decision and understand that it's your decision, then you may need to answer for it.
For example, your boss might need you to explain your reasoning when high rate social worker or consultant calls.
If it becomes clear that it's not your decision, for example, prescribing decisions generally belong to doctors, then you have a duty to provide what information you can to help them decide what to do.
This means the person who is best placed and best qualified for each particular decision gets to decide what happens.
And remember always that, although service users even with capacity can refuse to let you do something, they cannot demand that you do anything.
You decide what to offer, they decide whether or not to consent to it.
My name is Stuart Sorensen. I'm a Mental Health Nurse and trainer.
Thank you for listening.