A leading mental health charity has called for changes to the guidance on making decisions on behalf of people who lack capacity.
The Mental Health Foundation says current guidelines on best interests decisions – where social workers and others have taken over decision-making in areas such as personal welfare, type of care or financial affairs on someone else's behalf – need to be updated to reflect more complex situations.
In a report, published in conjunction with the Norah Fry Research Centre at the University of Bristol and the Centre for Applied Social Research at the University of Bradford, the charity says that the code of practice, which accompanies the 2005 Mental Capacity Act but was published before, should be updated.
Under the code, "a significant minority of best interests decisions were being made for people who had been shown to have capacity and who could be supported to make these decisions with help or who had been wrongly assessed as lacking capacity" the report says.
It adds that although different ways of reaching best interest decisions have been developed since the codes, this is not reflected in training and guidance for health and social care staff.
Despite a lack of awareness of the deprivation of liberty safeguards set out in the MCA, the report also found that many social care staff found the act helpful in balancing the autonomy and protection of individuals lacking capacity.
Toby Williamson, head of development and later life at the charity, says: "The code of practice was written before the act came into force and we now know from our research that it does not always encompass the complexity of capacity assessments in practice and that staff working in health and social care continue to need support to improve the way that they make best interests decisions.
"We hope that our recommendation to revise it by reference to our findings will prove a real asset in helping them achieve this".
The charity estimates that more than one million people in England and Wales, including those with dementia and learning difficulties, lack the capacity to make certain decisions for themselves.
The report is the culmination of a two-year research project which surveyed legal, health and social care professionals and was funded by the Department of Health's policy research programme.
It calls for a clearer definition of mental capacity to be included in code of practice, which clarifies how capacity differs from a "lack of insight" by someone about their own care needs; the development of more case examples to be included in the guidance that reflect more complex, real-life situations and that gaps in current practice and knowledge should be highlighted.
In addition to updating training materials for social workers and guidance issued by the DoH, the report also recommends that care homes review capacity assessments and best interests decisions on a weekly basis. All providers of health and social care services should also be audited regularly on compliance with the act, which would be monitored by the Care Quality Commission.
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