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Can clinicians and carers make valid decisions about others' decision-making capacities unless tests of decision-making competence and capacity include emotionality and neurodiversity?
- Authors:
- MACKENZIE Robin, WATTS John
- Journal article citation:
- Tizard Learning Disability Review, 16(3), 2011, pp.43-51.
- Publisher:
- Emerald
This paper offers academic criticism and explanation for the lack of knowledge of many of those involved in capacity assessments, especially non-professionals such as carers of the learning disabled. It suggests that current guidance for capacity assessments do not take into account issues of emotionality. The Mental Capacity Act 2005 Code of Practice suggests that healthcare professionals and carers may undertake assessments of decision-making capacity, yet the guidance it provides for their doing so overlooks salient issues. Many of those involved in the daily lives of those, who may lack decision-making capacity such as the learning disabled, demented, mentally ill and neurodiverse, must decide whether to respect their decisions as competent, or to disregard the decisions on the grounds of incompetence and to act in the person's best interests. Many will lack training in their clinical and legal responsibilities and liabilities. It is therefore vital that they are protected by an increased knowledge of mental capacity legislation and practice.
Mind the gap: the Deprivation of Liberty Safeguards in the amended Mental Capacity Act 2005
- Authors:
- MACKENZIE Robin, WATTS John
- Journal article citation:
- Tizard Learning Disability Review, 15(1), January 2010, pp.51-55.
- Publisher:
- Emerald
In 1997, a man with severe learning disabilities and autistic traits was admitted to hospital informally. Following an application to the European Court of Human Rights, this was ruled to be in violation of Articles 5(1) and 5(4) of the European Convention on Human Rights. Until this judgement, people not subject to the MHA 1983 but lacking the capacity to consent for themselves and needing hospital admission in their own interests had been admitted informally; this had now been ruled to be not lawful. This legal loophole became known as the Bournewood Gap. The UK government subsequently closed the Bournewood Gap by introducing the Deprivation of Liberty Safeguards into the Mental Capacity Act 2005. The Deprivation of Liberty Safeguards are a series of assessments that are undertaken by professionals when an adult is admitted to a hospital or care home and lacks the capacity to decide to be admitted themselves. They give legal safeguards to these vulnerable people that were previously missing. This article discusses the case that was the background to the legislation, explores the safeguards, and discusses the impact on services and individuals in the UK.