NICE quality standard - Law Society response

In December 2019, we responded to the National Institute for Health and Care Excellence (NICE) quality standard consultation on decision making and mental capacity.

The proposals

  • This quality standard covers decision making for people aged 16 and over, using health and social care services who may lack capacity to make their own decisions (now or in the future).
  • It aims to support implementation of the aims and principles of the Mental Capacity Act 2005 (MCA) and relevant Codes of Practice.
  • It is for commissioners, service providers, social care, health and public health practitioners, and the public.
  • The draft quality statements relate to people aged 16 and over who:
  1. may lack capacity to make decisions receive support for decision making that reflects their individual circumstances and meets their particular needs
  2. may be at risk of losing capacity to make decisions, and those with fluctuating capacity, are given the opportunity to discuss advance care planning at each health and social care review
  3. are assessed as lacking capacity to make a decision have a clear record of the practicable steps taken to support them and the reasons why they lack capacity
  4. lack capacity to make a decision have their wishes and feelings reflected in best interest decisions made on their behalf.

Our view

In principle, we agree that the four quality statements accurately reflect the key areas for quality improvement relating to the making of decisions by health and social care professionals.

However, our support is conditional on certain additional factors being considered by NICE, such as the particular position of those aged 16-17 years old under the MCA and the wording amended to accurately reflect the wording used in the MCA relating to accounting a person’s wishes, feelings, beliefs and values in best interest decisions made on their behalf.

We also suggested three further quality statements that could be adopted in this quality standard. These relate to advance care planning when a person aged 16 or over lacks capacity, the appropriate bringing of a case to the Court of Protection when necessary and the proper use of the MCA being used by professionals when making decisions.

Next steps

The consultation closed on 4 December 2019. The final quality standard is expected to be published in March 2020.

View the consultation on NICE’s website.

Download the response

NICE quality standard consultation - Law Society response (PDF 219kb)