Jan Flawn PJ CareEqual clinical rigour should be applied to assessments of people under the Mental Capacity Act as for compulsory detention and treatment under the Mental Health Act, the founder of a care provider has said.

In written evidence to a House of Lords select committee scrutinising the Mental Capacity Act 2005, Jan Flawn, founder of neurological care provider PJ Care, says radical changes need to be made to ensure people are protected.

About 50% of PJ Care’s 180 residents are affected by the Mental Capacity Act, and require either or both a mental capacity or best interest assessment under the Act.

The Mental Capacity Act, which was introduced in 2007, is intended to provide a legal framework for making decisions on behalf of adults who lack the capacity to take decisions for themselves. It requires a decision-maker to consult widely, including anyone who cares for the person who lacks capacity, and to make decisions in the person’s best interests.

Flawn, a registered nurse and former senior Department of Health manager, has questioned whether the implementation of the Act has actually protected the vulnerable people it was supposed to safeguard and believes humans rights issues are at stake.

She has urged the committee to revisit Mental Capacity Act regulations which allow health professionals with little or no mental health experience to make crucial judgements during mental capacity assessments.

Call for new guidelines

Instead, Flawn wants new guidelines brought in to ensure only a qualified consultant psychiatrist is allowed to make capacity assessments. This is something that already happens at PJ Care.

“At the moment, functional and diagnostic capacity tests can be made by any doctor or healthcare professional. This can even include a non-specialist general nurse, or even a dentist!

“In practice, it means a doctor with no suitable experience or training in assessing a person’s mental capacity can conduct assessments under the Act.

“Secondly, an unsuitably qualified healthcare professional – a general ward nurse or an inexperienced psychiatric nurse – can conduct vital assessments.

“In nursing homes, for example, a general nurse, with little or no mental health experience or training, has the power and authority to conduct capacity assessments. This can’t be right.

“Tighter rules need to be brought in to protect vulnerable people, including those with various forms of neurological conditions.

“My view is that only a suitably qualified consultant psychiatrist – as is required, for example, under the Mental Health Act – should make any such mental capacity assessments on residents, especially considering the significant human-right implications riding on such assessments.

“Such added rigour would be an additional – and required – safety net for all vulnerable people, including those with various forms of neurological conditions.”

The select committee looking into the Act is chaired by Lord Hardie, a former Lord Advocate, and includes Baroness Hollins, former president of the Royal College of Psychiatrists and current president of the British Medical Association. The committee will begin hearing oral submissions on October 8, and is expected to report back with its findings in February 2014.