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Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England): annual report, 2012/13
- Author:
- HEALTH AND SOCIAL CARE INFORMATION CENTRE
- Publisher:
- Health and Social Care Information Centre
- Publication year:
- 2013
- Pagination:
- 30
- Place of publication:
- Leeds
This fourth annual report provides information on the use of the Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS) legislation in England from 1 April 2012 to 31 March 2013. The report also refers to recent Care Quality Commission (CQC) DoLS monitoring. Key findings highlight a year-on-year increase in applications for deprivation of liberty under (DoLS); over half of DoLS applications during 2012/13 were granted; the majority of applications were completed on behalf of people with mental heath conditions (71%), with dementia accounting for more than half of all applications made (53%). (Edited publisher abstract)
Use of the Mental Capacity Act with children and young people with intellectual disability
- Author:
- GRATTON Suzannah
- Journal article citation:
- Advances in Mental Health and Intellectual Disabilities, 7(2), 2013, pp.88-92.
- Publisher:
- Emerald
This article examines the principles of the Mental Capacity Act (MCA) and explores its application to young people with intellectual disabilities through two case studies. The first case examines whether 16-year-old young man with a moderate intellectual disability has the capacity to decide whether he should continue to live with his foster family or return home to his parents. The second case study is of a 17-year-old young woman with a severe intellectual disability who communicates using a limited range of Makaton signs and PECS. After a diagnosis of depression, doctors needed to decided whether she has capacity to consent to medication. The author concludes that the MCA is applicable to 16-18 year olds with intellectual disability and services require training and support in its implementation. Issues of adaptation of communication to convey complex matters and appropriate preparation for assessment are especially pertinent. (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)
Use of the Mental Health Act in children and young people with a intellectual disability
- Author:
- RIPPON Lisa
- Journal article citation:
- Advances in Mental Health and Intellectual Disabilities, 7(2), 2013, pp.82-87.
- Publisher:
- Emerald
Drawing on relevant literature, legislation and guidance, this article summaries the legislation in place within England and Wales concerning the care and treatment of children and young people with an intellectual disability. It also provides a brief outline of the equivalent law in Scotland. It seeks to describe how the age of a young person will determine which piece of legislation should be used to ensure an admission into an inpatient Child and Adolescent Mental Health Unit will be lawful. It also seeks to consider the role of those with parental responsibility in the decision-making progress and discuss which components of a proposed treatment plan they would or would not be able to consent to on behalf of those children and young people in their care. The results found legislation governing the admission and treatment of children and adolescents with an intellectual disability to be complex. All clinicians working with those under the age of 18 should have knowledge of the relevant legislation to ensure that the rights of children and young people are upheld. (Edited publisher abstract)
Sexual health, neurodiversity and capacity to consent to sex
- Authors:
- MacKENZIE Robert, WATTS John
- Journal article citation:
- Tizard Learning Disability Review, 18(2), 2013, pp.88-98.
- Publisher:
- Emerald
Purpose – The purpose of this paper is to clarify: the law on capacity to consent to sex; ethical and legal factors in assessing decision-making capacity of those on the autism (ASD) and neurodiverse (ND) spectrums; and the legal obligations to promote sexual health devolving to local authorities from April 2013. We make proposals to ensure socio-sexual competence by providing appropriate sex and relationship education (SRE). Design/methodology/approach – Critical legal analysis of case law and legislation on the capacity of the vulnerable to consent to sex, in the context of those diagnosed on the autism and neurodiverse spectrums. Findings – Consent to sex cannot be regarded as informed, autonomous, valid and lawful without socio-sexual competence. Sex and relationships education should be provided to ensure socio-sexual competence, in keeping with international conventions and national laws and policies. Research limitations/implications – There is an urgent need for research into the needs and experiences of people with ASD/ND and their families/carers with regard to the efficacy and tailoring of SRE strategies. This research should feed into SRE family intervention programmes (SREFIPs), developed in partnership with people with ASD/ND, their families/carers and professionals. Originality/value – This article seeks to resolve many of the existing legal uncertainties surrounding the capacity to consent to sex and to propose novel solutions to ensure the socio-sexual competence of those diagnosed on the ASD or ND spectrums in relation to their rights to sexual expression. (Publisher abstract)
The zone of parental control: a reasonable idea or an unusable concept?
- Authors:
- WATTS John, MACKENZIE Robin
- Journal article citation:
- Tizard Learning Disability Review, 18(1), 2013, pp.38-44.
- Publisher:
- Emerald
This article explores the recently introduced concept of the Zone of Parental Control (ZPC) which has been introduced in the Code of Practice for the revised Mental Health Act 1983. The authors suggest that guidance on its scope remains limited. To begin to address this, they bring together recent rulings from case law and the original guidance, and make suggestions to assist clinicians when deciding if an intervention is within the Zone. A recent case has cast some light on judicial thinking in the area and the authors begin by discussing this. They believe that ZPC is a rather vague construct that has face validity but still leaves rather a lot of room for the subjectivity of clinicians. The paper concludes that deprivations of liberty fall outside the ZPC, but restrictions of liberty lie within; parental disagreement with care correlates strongly with care that lies outside the ZPC. The authors apply their findings to potential clinical scenarios, highlighting some of the issues that arise in clinical practice. They conclude with some recommendations for the future.
Using the Mental Capacity Act in complex cases
- Authors:
- BROWN Hilary, MARCHANT Liz
- Journal article citation:
- Tizard Learning Disability Review, 18(2), 2013, pp.60-69.
- Publisher:
- Emerald
Purpose – The purpose of this paper is to explore the way that practitioners apply the 2005 Mental Capacity Act (MCA) in complex cases involving people with learning disabilities who cannot make some key decisions by themselves. Like many qualitative studies it began with a felt sense that practitioners were struggling to apply the clear framework set out in the Act to real life situations, and that some of the decisions they were faced with did not fit neatly into the linear, cognitive model of decision making set out in the MCA and its accompanying guidance. Design/methodology/approach – The study was conducted under the aegis of the Office of the Public Guardian (OPG) during 2010-2011. A number of “complex” cases were obtained from Social Services, Primary Care Trusts and other organisations and subjected to thematic analysis. The current paper focuses on the 16 cases that involved people with learning disabilities. Findings – A number of issues were identified that underlay the complexity of the cases examined. The cases drew attention, in particular, to the way in which practitioners were confronted with mounting concerns as opposed to single, discrete decisions, with the risk that decisions could be delayed until positive choices were much less available. Originality/value – The aim of the study was to support the use of the Act in these situations and to give practitioners confidence in applying its principles across a wide range of diverse circumstances. Although the original study specifically related to the English legislation, the factors that led people to consider a case “complex” would apply equally in other jurisdictions. The study also shed light on difficulties that arise when intervening in less formal ways. (Publisher abstract)
Commentary on “Using the Mental Capacity Act in complex cases”
- Author:
- DUNN Michael
- Journal article citation:
- Tizard Learning Disability Review, 18(2), 2013, pp.70-73.
- Publisher:
- Emerald
Purpose – The purpose of this paper is to comment on Brown and Marchant's analysis of the complexity that can arise when applying the Mental Capacity Act 2005 (MCA) to the care and support provided to people with learning disabilities. Design/methodology/approach – A theoretical approach to explore the implications of Brown and Marchant's paper for the relationship between the law and practice in this area. Findings – The complexity accounted for by Brown and Marchant lies in the tension between the procedural requirements of the MCA and the practical realities of the support provided to individuals with complex and long-term needs. This tension cannot be addressed simply by focusing on improving training or better implementing the law in practice. Originality/value – It is important to further examine and explore the relationship between new legal principles to govern decision making and the complex ways in which people with learning disabilities and other individuals need to be supported in practical situations. (Publisher abstract)