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Reporting of use of coercive measures from a Dutch perspective
- Authors:
- FREDERIKS Brenda J.M., et al
- Journal article citation:
- Advances in Mental Health and Intellectual Disabilities, 11(2), 2017, pp.65-73.
- Publisher:
- Emerald
Purpose: The purpose of this paper is to advance a number of outlooks on the reporting of the use of coercive measures in the care for persons with intellectual disabilities. The following questions will be discussed: which forms of involuntary care should be externally reported and how is this external reporting influenced by environmental and other factors? Design/methodology/approach: This paper describes an important part of the New Dutch Care and Coercion Act (Wet zorg en dwang) concerning reporting the use of coercive measures. The implications of reporting the use of coercive measures have been discussed at a meeting for experts in mental health law and the care of people with an intellectual disability. The issue has been presented to the participants as neutrally as possible, so as to provide the researchers a comprehensive picture of the different views on reporting the use of coercive measures. The outcome of this meeting has served as the input for a further step in the research – using the Delphi method – in order to address the issue comprehensively. Findings: The Dutch legislation on reporting involuntary care implies that measures carried out only in the face of resistance should be externally reported. The experts that participated in this study endorse the importance of a real-time external reporting system. They believe that standardized and reliable external reporting requires involuntary care, the categories of involuntary care and the environmental and other factors that affect external reporting to be defined more concretely. They regard environmental and other factors as decisive for assessing whether a measure constitutes involuntary care. This in turn, therefore, has consequences for whether such incidents should be reported. Research limitations/implications: Many concepts in the new Dutch Care and Coercion Act (Wet zorg en dwang) are not formally defined. Instead, the legislator has left it to those in the field to decide how they should be interpreted. This prompted many questions from those attending the expert meeting and in our own analysis. The researchers could possibly have resolved this confusion during the meeting by formulating more detailed definitions of terms such as “resistance” and “involuntary care” beforehand. The disadvantage of this, however, would have been that those attending the meeting would have had no opportunity to define the terms on the basis of their own expertise. As a result, the researchers have obtained all relevant information comprehensively to use as the input for the next step of the research, which employs the Delphi method. Practical implications: This viewpoint emphasises the need to take a wide range of factors into account throughout the process in order to establish whether care can be seen as involuntary. The researchers regard the care providers’ expertise in dealing with these factors – client factors, and behavioural or environmental factors, for example – as being of essential importance if care is to be recognised as involuntary and reported as effectively as possible. Therefore, the researchers discuss whether the legal position of clients is protected if care providers register only those forms of involuntary care where there is obvious resistance. In this case, many forms of resistance are overlooked, which may be to the detriment of the legal protection of clients with intellectual disabilities. However, the system in the UK shows that it can be quite complicated to develop a clear definition of involuntary care that is usable in practice, without giving rise to an enormous amount of bureaucracy and thus distracting from the real issue: protecting the legal position of clients with an intellectual disability. Originality/value: Academic papers clearly demonstrate that external reporting of involuntary care has not yet become properly established, either in the Netherlands or elsewhere, such as in the UK. This paper seeks to provide insights into new Dutch legislation about external reporting of involuntary care. By organising a meeting with experts, the factors that have so far acted as obstacles in the reporting of involuntary care are problematized. The findings of this paper will help to further the process of developing an effective system for reporting involuntary care. (Publisher abstract)
Guardianship and supported decision making in Israel
- Authors:
- DAVIES Rebecca Naomi, WERNER Shirli, SINAI Amanda
- Journal article citation:
- Advances in Mental Health and Intellectual Disabilities, 11(2), 2017, pp.54-64.
- Publisher:
- Emerald
Purpose: Recent research has promoted the use of supported decision making, in contrast to historical methods of substitute decision making when working with people with intellectual disabilities. In Israel, people with disabilities are protected by the Legal Capacity and Guardianship Law of 1962, which was amended in 2016. The purpose of this paper is to consider how these recent changes are perceived by the professionals in Israel. Design/methodology/approach: Professionals with experience in policy making, law, social work and with direct experience working with people with intellectual disabilities (ID) were interviewed using semi-structured interviews and one focus group. Interviews were recorded and subsequently coded and analysed qualitatively. Findings: Two major themes were identified. These were: the law and its phrasing, and changing culture. Findings highlight the process of change within guardianship law and practice and the challenges in implementation encountered so far and anticipated in the future. Originality/value: Guardianship laws are changing in many states and the challenges to implementation of supported decision-making in these countries have been echoed in this study. Functional models to allow implementation of supported decision-making have not yet been strongly evidenced. It is hoped that this research may provide a springboard for further study into legal capacity and guardianship issues in Israel and elsewhere. (Publisher abstract)
Understanding sex: the right to legal capacity to consent to sex
- Author:
- ARSTEIN-KERSLAKE Anna
- Journal article citation:
- Disability and Society, 30(10), 2015, pp.1459-1473.
- Publisher:
- Taylor and Francis
This article addresses the right to legal capacity to consent to sex of people with intellectual disabilities. Article 12 of the Convention on the Rights of Persons with Disabilities guarantees the right to legal capacity on an equal basis in all areas of life. This article discusses sex as an area of life in which people with intellectual disabilities are frequently not being granted legal capacity on an equal basis. The article examines current capacity to consent to sex law in Ireland, England and Wales in light of Article 12. It proposes an ‘agreement model’ as a potential alternative that would be Article 12 compliant. (Publisher abstract)
Banking on good decisions: how can the Mental Capacity Act help you with your bank, building society or post office account?
- Author:
- MENTAL HEALTH FOUNDATION
- Publisher:
- Mental Health Foundation
- Publication year:
- 2008
- Pagination:
- 38p.
- Place of publication:
- London
The Foundation for People with Learning Disabilities, part of the Mental Health Foundation, has published new guidance on how the Mental Capacity Act can affect personal banking. Banking on Good Decisions explains in everyday language how the Act affects financial matters for people with a learning disability. The booklet is available in an Easier Read format for people with learning disabilities, and will also prove useful for carers, advocates and health and social care staff. Under the Act, in force since October 2007, people should be assumed to be capable of making a particular financial decision unless it is proved otherwise, and they should be offered all appropriate support to do so. Banking on Good Decisions outlines these and other key principles of the Act, and explains what someone should do if they feel the law is not being properly.
STOMP, advocacy and the law
- Author:
- VOICEABILITY
- Publisher:
- Voiceability
- Publication year:
- 2018
- Pagination:
- 8
- Place of publication:
- Cambridge
This document provides information for advocates and health and social care professionals on what the law says about the advocate’s role in decisions made about the use of psychotropic medicine for people with a learning disability, autism or both. It also looks at the legal duties of health and social care professionals to involve advocates in relation to the use of psychotropic medication. Areas covered include: the Mental Capacity Act, the Mental Health Act, the Care Act, and Safeguarding. The document may also be helpful to people who are being prescribed psychotropic medication and their families. It is a supplement to the guide ‘STOMP: top tips for advocates’, also published by Voiceability. (Edited publisher abstract)
Does it matter? Decision-making by people with learning disabilities
- Authors:
- PEOPLE FIRST (SCOTLAND), ANIMATE
- Publisher:
- Animate
- Publication year:
- 2017
- Pagination:
- 84
- Place of publication:
- Glasgow
This research examines whether supported decision making for people with learning disabilities offers a practical and safe alternative to substitute decision following a guardianship order. It aims to present their views within the current debate about the need to revise Scotland’s incapacity legislation. Peer researchers conducted interviews with 128 people who had a learning disability about their experiences of decision making. Overall, participants felt making decisions for themselves was important, emphasising the need to have choice and the freedom to be independent. Good practice examples of supported decision making are included. However, participants reported that they commonly experienced decisions being made about them without people asking, which left many participants feeling powerless and angry. The report also discusses the barriers to people with learning disabilities taking greater control of their decision making; challenges within the current guardianship system in Scotland; and the challenges to delivering supported decision making. The findings suggest that supported decision-making for people with learning disabilities can offer a safe and realistic alternative to substitute decision-making, but requires a significant change in mindsets as to the rights, resources and risks involved. (Edited publisher abstract)
Mental capacity and deprivation of liberty: the Law Commission’s review of the deprivation of liberty safeguards
- Author:
- SPENCER-LANE Tim
- Journal article citation:
- Journal of Adult Protection, 19(4), 2017, pp.220-227.
- Publisher:
- Emerald
Purpose: The purpose of this paper is to provide a brief overview of the Law Commission’s final report and recommendations on the reform of the deprivation of liberty safeguards under the Mental Capacity Act. Design/methodology/approach: Summary Findings: The proposals contained in the Law Commision Review and proposals for law reform are outlined. (Publisher abstract)
Understanding and using the Mental Capacity Act
- Author:
- MUGHAL Aasya F.
- Journal article citation:
- Nursing Times, 110(21), 2014, pp.16-18.
- Publisher:
- Nursing Times
The Mental Capacity Act exists to safeguard patients who lack mental capacity to make decisions for themselves and the health professionals who are for them. It should be followed whenever there is a doubt about a patient's mental capacity and a decision is required about their care and treatment. All health professionals working in hospitals and care homes should understand when and how the act should be used. This article explains the main points of the act, including assessing mental capacity and best interests assessments, training and record keeping. (Edited publisher abstract)
Where now for the Mental Capacity Act and DoLs?
- Author:
- PARTON Dan
- Journal article citation:
- Learning Disability Today, 14(3), May/June 2014, pp.8-10.
- Publisher:
- Pavilion
- Place of publication:
- Hove
Asks what the recent House of Lords report and Supreme Court judgements mean for the future of the Mental Capacity Act and Deprivation of Liberty Safeguards. (Edited publisher abstract)
Consent and sex in vulnerable adults: a review of case law
- Authors:
- CURTICE Martin, MAYO Jonathan, CROCOMBE Juli
- Journal article citation:
- British Journal of Learning Disabilities, 41(4), 2013, pp.280-287.
- Publisher:
- Wiley
The introduction of the Mental Capacity Act 2005 has brought to the fore issues regarding capacity in various clinical settings. One important area where capacity assessment is often vital is regarding vulnerable people being able to consent to sexual relations. Case law from courts has evolved with regard to this sometimes complex and emotive issue both before and after the implementation of the Mental Capacity Act 2005. This article describes and analyses the evolution of such case law which predominantly involves people with learning disabilities. In doing so, it explains key principles and tests both for consenting to sexual relations and for the use of contraception which can be applied and used in clinical practice. The article also discusses the associated human rights issues for vulnerable adults in trying to balance the right to sexual relations as part of an individual's private life whilst managing potential abuse issues. (Publisher abstract)