Policy review: NICE Guidance on Decision-making and mental capacity

The guidance referred to is available here.

I decided to branch out from books and papers and look at some NICE guidance and maybe some policy documents too in weeks to come. I present this as very much a ‘non-expert’ but rather as someone working in this area who wants to make sure I am aware of best practice.

NICE and the place of NICE in Social Care

As a brief introduction, it is useful to note the role of NICE. The National Institute for Health and Care Excellence (NICE) was founded in 1999 as an independent body which produces advice and guidance about best practice in medicine and health. After the 2012 Health and Social Care Act, the body was asked to provide guidance on social care and the first social care guidance was issued in 2014. It is a non-departmental government body.

Background to this guidance

The guidance on Decision-making and mental capacity was published in October 2018 as NG108 . As part of the process of writing guidance, NICE committees will involve experts (including experts-by-experience). Alongside the guidance itself, NICE publish the methodology which is useful as a new researcher to understand how to write up scoping literature reviews as well a methodology although it is in a lot more depth that would usually be necessary. It includes which databases were used for searches and what phrases and words were used, which studies were included and which were excluded. They also detail the expert testimony included and who was consulted and inputted into the formation of the document.


The guidance was written in the light of numerous reports and studies (which are detailed in full on the NICE website) which pointed to a mismatch between what the legislation and Code of Practice say about assessing capacity and making decisions about capacity on behalf of people when they may lack capacity to make those decisions in the context of health and social care. Of course, the Mental Capacity Act (MCA) and its scope move far beyond the health and social care sphere but for the purposes of NICE, that is where their scope lies. The guidance was actively commissioned by the Department of Health to help people using the Act in practice to engage with it.

The guidance is used alongside the primary legislation, Code of Practice and growing case law and provides practical assistance both to both health and social care professionals and organisations that employ them and those who commission these services regarding duties, expectations and best practice goals.

As the Code of Practice is being updated now, until it emerges, this is the most recent guidance that practitioners can turn to. Personally, I have found it enormously useful in my work, not least making me more aware of expectations. I know colleagues who have been more critical but for me, it’s been a useful tool.

The guidance specifically excludes reference to deprivation of liberty safeguards and areas of decision-making and mental capacity for under 16s which have different legislative frameworks.

Summary of key recommendations

The guidance divides along the lines of key recommendations and divides them into recommendations for individual practitioners, for service provides and for commissioners. So reading this, one can choose the parts that relate most to the area that impacts.

Regarding individual practitioners, as that is where my interest lie, I was disappointed that some of the key ‘know the law and apply the principles’ has to be stated. It shouldn’t need to be part of formal guidance. Some of the guidance is stuff that shouldn’t even need to be said but perhaps reflects where some of the drive has come. Areas like, ‘make sure you document past and present wishes, beliefs and preferences’ may seem like they don’t need to be said but by expressing, them it ensures expectations are clear. When we are writing records, we are not just writing for tomorrow, but also for 10 years in the future.

The guidance also emphasises the importance of sharing information including information about accessing advocacy services. Obviously I won’t list all the recommendations here as a lot of them are ‘do what the Code of Practice’ says but there is a stronger emphasis on recording reasons for decisions and involvement.

The other area that I saw was strongly emphasised was the importance of advance care planning. By nature a lot of work in a busy organisation happens when it needs to and perhaps this is more focussed on social care staff who may be working in a more preventative capacity to think about and document advance care planning and give people the opportunities to understand and make advance decisions.

When explaining the process of actually undertaking an assessment of capacity, the guidance emphasises the need for collaborative approaches to be taken and refers to particularly difficult situations where someone may have a brain injury which affects executive functioning which may call for a more structured assessment.

The guidance is clear that a documented assessment of capacity must exist before a best interests decision is made. Some research has reflected that this has not always been consistent in practice. There is also a specific section of the guidance devoted to involving family members and those who are involved when best interests’ decisions need to be made. Although this might be obvious for people using the Act and Code of Practice, it strengthened the clarity of challenge when these steps are not taken.

To organisations that provide services and employ health and social care staff, there are specific guidelines which are highlighted. These include ensuring that staff have access to better training (they talk about more investment in training). They should also ensure there are robust monitoring procedures in place including outcome measures which involve people who have been assessed and the level of collaboration in decisions being made.

They are also tasked to ensure that the systems they have in place have a clear way of recording preferences and advance care planning including advance decisions.

Commissioners have recommendations which vary in strength from asking them to ‘consider’ increasing the scope of Independent Mental Capacity Advocates (IMCAs).

There are some areas of oversight that are emphasised and recommendations about systems being in place to ensure good practice is followed but there has to be a will to change in order to do this and that is probably not the priority of some who commission services.

Thoughts on the recommendations

Generally, I’ve found the NICE guidance helpful. Although I hope it doesn’t tell people using it anything new, it is a clear representation of some of the ‘how’ in terms of carrying out a mental capacity assessment and taking best interests decisions.

Recommendations, like all NICE guidance, are just recommendations in the end. The call on commissioners and service providers to provide more investment in training is something that requires analysis of the training which has taken place and why it hasn’t been useful. I have my own theories but this probably isn’t the place for them.

Given what the scope of the project, I think the recommendations remain unambitious. Yes, we should involve people but investing in training needs outcomes of training to be measured. Having key people in place to push mental capacity as a necessary knowledge set is key and shouldn’t rely on champions who have been picked because no-one volunteers. For me, work around capacity and best interests is a fascinating area of power dynamics, control and push between state and individual which needs to be explored in more depth and given more life in practice. If it is presented and trained through online tick boxes as if it’s just another burden to complete rather than a way to work with an individual and their family or people important to them in a collaborative and exciting way, it can influence attitudes to the processes.

But that’s probably outside the scope of the guidance!

Use in practice

I have found this to be eminently useful in practice, from the clear examples given about how to involve people in decision-making to the retelling of the legislation with recommendations about how they can be used better. Some of the recommendations can be completed by individual practitioners today, others need financing and systems to be changed but anyone who is involved in assessing capacity or working with patients and service users to build pictures of individuals through care planning and incorporating advance care planning can find the guidance immediately useful.


I have probably not explored relevant NICE guidance as much as I should have and this is the first guidance I have seen which directly influences my day to day practice. It has been useful to read through and I have a copy on my desk at work which I direct people to. One of the key uses for NICE guidance, particularly when there are recommendations for organisations, is to highlight through management when they are not being adhered to (I’m terribly popular with my managers!).

However, even for the key steps of assessing capacity, there is useful, clearly written and up to date guidance and for that, this is worth both accessing and using actively.

Paper review: Health and social care practitioners experiences of assessing mental capacity in a community learning disability team

This paper, authored by Daniel Ratcliff and Melanie Chapman, was published in the British Journal of Learning Disabilities 2016 Vol 44 (4) p329-336


This is an article which is very much located outside the ‘social work research’ space although it is occupied with a topic which is very much in our areas of interest, indeed, my own research is focussed on the Mental Capacity Act and ways of assessing it so there may be a tilt towards articles in this area. And this one has been enormously useful.

The premise of the paper is to look at the experiences of different professionals when undertaking the assessment task. It’s interesting to note that the study was undertaken by one practitioner (Ratcliff) and one academic (Chapman) working together. This adds another layer of interest to the paper and its analysis.


The study was very much located within the qualitative space, exploring the experiences of eight professionals, from health and social care backgrounds, using semi-structured interviews which were then analysed using thematic network analysis.

All those interviewed worked within a community learning disability team and had done for at least seven years. In terms of professional breakdown, there were three nurses, a physiotherapist, a speech and language therapist and two social workers. All of the team members worked in the same team and had received the same in-house training.

The data, which was the transcribed interviews, was analysed using thematic network analysis. Thematic analysis looks at identifying common themes which emerge from the data and the researchers focussed on networks within the data which linked to the themes identified.


The paper starts with a brief literature review relating to the current situation regarding the use of the Mental Capacity Act (2005) in England and Wales. It identifies, from previous research, that there are known variations in the quality of work around use of the MCA in practice including gaps in knowledge and lack of confidence in implementation of knowledge and that despite training, this had not, seemingly, led to improved practice.

The Mental Capacity Act (2005) while being generally acknowledged as a positive move in legislation relating to those whose capacity to make specific decisions may be doubted, has led to continuing conversations, over 10 years after implementation (which was in 2007) about the lack of embeddiness in health and social care services. The Act is used in all areas of health and social care practice (apart from under 16s) but it has been particularly used relating to adults with cognitive impairments, whether permanent or temporary. In terms of social work practice, this is most commonly identified in work with adults with learning disabilities and work with older adults where deteriorating cognitive functioning may be identified, for example, with some dementias.

Key learning points

The study identified five significant themes which emerged from the thematic analysis of the interviews.

  • Systematic barriers to assessment
  • Capacity assessment as a challenging process
  • Person-specific challenges
  • Protective practices
  • Protection of a fundamental human right

Basically, there were organisational and structural issues in place which might impede quality assessments. This could be about the workload pressure of staff or the ethical tensions between organisational need and outcome of specific assessments, particularly noted around attitudes towards risk

…there was service level pressure to ensure that risks of harm to individuals were limited as far as possible, thereby conflicting with the practice of positive risk taking and allowing capacitious individuals to make unwise decisions.


There was also an expression that a ‘capacity assessment’ could take time and effort to ensure it was carried out in the best way, particularly with involvement of carers. While the legislation explicitly encourages family involvement it can be more challenging when there are differences around the decisions made.

Practitioners raised the challenge of difficult decisions where it was not a straightforward outcome but where there might be a different interpretation, for example, relating to specific decisions.

Participants noted that joint decision-making was helpful and support from other colleagues in thinking through the processes. They also said more specific guidance could be helpful.

There was a general positive response to the impact the MCA had made on practice. It had put into legislation, some of the importance of emphasising the individual and their human rights. There was a feeling it had improved practice and the rights of people who used the services they provided.

The researchers identified a ‘global theme’ which enveloped the data collected as ‘freedom to act versus restrictions on action’. Without understanding more about the coding process, I relate this back to the initial title, which summarises the experiences of those using the MCA in this setting.

Reflections and gaps

The study is acknowledged to be a small-scale study which has taken place within one team where professionals have worked with the same organisation and often with the same people (they have all been in the team for a minimum of seven years). This means there may be a further risk of extrapolating from this data where practises and the culture of the team and organisation may have embedded and reflected on the responses.

Language, attitudes and values can be shaped by the organisation as well as the individual attitude. The study does not reflect (possibly because it is not different and the same size was so small they could be identified) if the professional background of the interviewee was a factor in reflecting the differences.

It is useful to see practitioners directly involved in research, particularly noting the interviews were carried out by the practitioner. It would have been useful, although this might be for a longer piece, to know if he had links to the team in which the research was taking place. It makes no difference to the outcomes, but it an interesting context in which to place the research.

Use in practice

It is good to see an example of research of practice taking place involving a practitioner and academic working together, particularly as the issue is one that can have an impact on the way teams work.

There were a number of issues identified in the study that I can take with me to practice. One is about the usefulness of support. Often this can be looking at supervision and training but the key that this piece draws out is those informal conversations with colleagues, highlighting a need which emerges from the paper, for a consideration of peer groups among professionals. Personally, I’m wondering if there is a scope for multidisciplinary peer groups which a focus on learning from each others’ practice and reflecting on potential improvements in practice together, in my work setting.

Training is necessary for legal literacy but use of training can vary. It is worth considering how understanding and knowledge can be on a continuous basis rather than a snapshot in time. I come back to the peer support groups and wonder whether this is an aspect that can improve.

The paper talks about the need for organisational changes to ensure that there is sufficient time to ensure that work can happen in the best environment. This could be written about any aspect of health and social care and isn’t something we can often change as individuals. There is an aspect about usefulness of templates and examples which might be able to be shared to make the decision-making better informed. Perhaps sharing some model anonymised good practice examples which are referenced with up to date case law and research. Sometimes the time spent searching for new information can be saved if it is well-disseminated.


This is a useful study and a useful paper in all. As someone who has developed an interest both in how the MCA is used and understanding different research methodologies, it has been an interesting piece. The research is clearly explained and the gaps identified.

I think while the literature review is well-presented, the sample size is small but produces some useful content which reflects some of the previous research in the field. The commentary around the piece including the themes identified, in some ways seems more useful than the specific data. It is very useful to see practice-focussed research. I’d like to see more about any differences between professionals and how that links to attitudes to the legislation as well as the experiences of people who have differing levels of post-qualification experience.

Saying that, the paper is useful, particularly as the researchers identify explicitly, the potential use in practice. It does leave us begging a lot of questions for more research in this area though.

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