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Inside the Court of Protection
- Author:
- BRAMMER Alison
- Journal article citation:
- Journal of Adult Protection, 14(6), 2012, pp.297-301.
- Publisher:
- Emerald
This paper summarises the work of the Court of Protection. It provides a unique insight into the work of the Court of Protection and the implications of recent decisions by the Court for adult safeguarding, by outlining the history and range of applications within the jurisdiction of the Court, drawing from the Mental Capacity Act and the Code of Practice. Reference is made to annual reports of the work of the court which profile its workload. Finally there is a review of a line of case law dealing with the question of media attendance and reporting of cases before the court. The Court in its current form was established under The Mental Capacity Act, 2005 and is a significant decision-making body in the UK within adult safeguarding practice concerning adults whose decision-making capacity is impaired. The implications of several specific cases are discussed.
Best interests provisions in the UK Mental Capacity Act 2005
- Author:
- ARIBISALA Olufunso B.
- Journal article citation:
- Psychiatrist (The), 36(12), December 2012, pp.459-462.
- Publisher:
- Royal College of Psychiatrists
The Mental Capacity Act 2005 is a critical statute law for psychiatrists in England and Wales. At its core lies the best interest provision of Section 4 which is fundamental to substitute decision-making for incapacitated adults. The writer asks what is meant by the term “best interests” and how the concept differs from a medical professional doing what he believes is best. This paper sets out to analyse the concept of best interest as laid out in the Act relating to incapacitated adults. It prescribes a process of, and gives structure to, substitute decision-making. The participation of the incapacitated adult is encouraged where practicable. In addition, ‘the best interests checklist’ must be applied in every case before a practitioner can arrive at a reasonable belief that the action or decision taken on behalf of an incapacitated adult is in his best interests. The author concludes that most commentators have shown goodwill towards the workings of the Act and want it to succeed.
The death of deprivation of liberty safeguards (DOLS)?
- Author:
- TROKE Ben
- Journal article citation:
- Social Care and Neurodisability, 3(2), 2012, pp.56-63.
- Publisher:
- Emerald
This article reviews the underlying rationale of the Deprivation of Liberty Safeguards (DOLS), based on the implications of the recent key Court of Appeal judgment in P v. Cheshire West and Chester. It provides a detailed analysis of Cheshire from the perspective of a Court of Protection practitioner, and advice on a practical approach to dealing with the concerns it raises. The article considers whether it will help to achieve the right balance between minimising state interference with individuals and families, and protection of the most vulnerable, or risk undermining the core purpose of the system. Finally, the article suggests that there are potential adverse effects from the judgment in Cheshire, and the way in which it has been interpreted to date, including a risk of undermining the very purpose of DOLS, and a risk of discriminatory effect.
An exercise in maximising capacity for decision making
- Authors:
- REES S., RYAN-MORGAN T.
- Journal article citation:
- Social Care and Neurodisability, 3(2), 2012, pp.69-76.
- Publisher:
- Emerald
This article discusses the Mental Capacity Act 2005, which aims to protect people who lack the capacity to make particular decisions. It explores the steps taken to maximise an individual's ability to make decisions in regards to making a Will. Concepts relating to testamentary capacity are thematically assessed, and include money issues, family and friends, the concept of death, and making a will. The article sets out a framework for maximising capacity for decision making and shows how a systematic, structured, evidence-based and individually focused approach to assessing and optimising capacity under the terms of the Mental Capacity Act 2005 can be effective.
Manifest madness: mental incapacity in the criminal law
- Author:
- LOUGHNAN Arlie
- Publisher:
- Oxford University Press
- Publication year:
- 2012
- Pagination:
- 312p.
- Place of publication:
- Oxford
Mental incapacity is a central concern for policy makers, and legislators when it comes to crime and justice. However, understanding mental incapacity in criminal law is notoriously difficult; it involves tracing overlapping and interlocking legal doctrines, current and past practices of evidence and proof, and also medical and social understandings of mental illness and incapacity. With its focus on the complex interaction of legal doctrines and practices relating to mental incapacity, this book offers a fresh perspective on this topic. Bringing together previously disparate discussions on mental incapacity from law, psychology, and philosophy, the book provides a close study of criminal law, analysing the development of mental incapacity doctrines through historical cases to the modern era. It maps the shifting boundaries around abnormality as constructed in law, arguing that the mental incapacity terrain has a distinct character - 'manifest madness'.
Legal constructions of dementia: discourses of autonomy at the margins of capacity
- Author:
- HARDING Rosie
- Journal article citation:
- Journal of Social Welfare and Family Law, 34(4), 2012, pp.425-442.
- Publisher:
- Taylor and Francis
- Place of publication:
- Philadelphia, USA
In this paper, the author explores the operation of the Mental Capacity Act 2005 and the 'right to autonomy' for people with dementia. The paper discusses conceptual understandings of and approaches to autonomy, including individual autonomy, relational autonomy, and a person-centred relational approach to autonomy. It uses discourse analysis to analyse judicial language in a recent case about where a person with dementia should live involving consideration of the capacity of a person with dementia to make decisions for herself (Dorset County Council v EH 2009), using illustrative quotations from the case. It considers autonomy in judicial discourse about dementia, discourses of dementia, autonomy and relationality, and preserving autonomy for people with dementia. The author argues that relational autonomy should be revised to include insights from person-centred care in order to empower decision making for people with dementia and improve the ways that dementia is understood in law.
Legal constructions of dementia: discourses of autonomy at the margins of capacity
- Author:
- HARDING Rosie
- Journal article citation:
- Journal of Social Welfare and Family Law, 34(4), 2012, pp.425-442.
- Publisher:
- Taylor and Francis
- Place of publication:
- Philadelphia, USA
The provisions of the Mental Capacity Act 2005 (MCA) sought to allow more decisions to be made by those who are situated at the margins of capacity. This paper explores the operation of the MCA for people with dementia through a discursive analysis of how different conceptual understandings of autonomy in law can make a difference to the lives of people with dementia. It begins with an interrogation of conceptual approaches of autonomy, highlighting 2 contrasting frameworks for understanding the capacity to make decisions: ‘individual’ and ‘relational’ autonomy. It is argued that combining the insights from relational autonomy with a person-centred approach would be more helpful when considering decision-making by and for people with dementia. The paper then uses discourse analysis to analyse judicial language in a key case about where a person with dementia should live. It is argued that possibilities for autonomy at the margins of capacity may be closed down through the discursive strategies used by the courts. The paper concludes that relational autonomy should be revised to include insights from person-centred care in order to empower decision making for people with dementia, and that judicial decision-makers should engage with the relationality of autonomy at the margins of capacity.
Adult protection and ‘intimate citizenship’ for people with learning difficulties: empowering and protecting in light of the No Secrets review
- Author:
- HOUGH Rebecca Emily
- Journal article citation:
- Disability and Society, 27(1), 2012, pp.131-144.
- Publisher:
- Taylor and Francis
This article looks at the implications of the UK’s ‘No Secrets’ review for the ‘intimate citizenship’ of individuals with learning difficulties in relation to consenting sexual relationships. This legislation gives health professionals powers to enter the homes of ‘vulnerable adults’ where abuse is suspected and remove the ‘victim’ without their consent. The article considers the consequences of such legislation for the citizenship of people with learning difficulties who have capacity to consent to sexual relationships. Proposals of the consultation are considered in terms of their practical relevance, finding that changes can be made with better guidance, resources, policy implementation and a sound evidence base for adult protection. An argument is made that proposals contravene human rights, mental capacity laws and the ethos of personalisation, increasing the focus on risk in practice. An ecological model of vulnerability is supported, which offers an approach that can prevent sexual abuse through empowerment without the need for new legislation.
Best interest decisions: are we getting it right?
- Authors:
- BOYLE Geraldine, et al
- Journal article citation:
- Journal of Dementia Care, 20(6), November 2012, pp.19-21.
- Publisher:
- Hawker
The Mental Capacity Act 2005 gives decision-making rights to adults who lack capacity, makes clear when capacity needs to be determined before decisions are made on behalf of another person, and clarifies who can make decisions on their behalf. This article describes the findings of a national study that aimed to establish how the Mental Capacity Act is working for those on the front-line in complex decision-making situations. The study was undertaken in 4 areas of England and involved 3 stages: an online survey completed by 385 professionals; a telephone survey of 68 professionals; and a survey in which various professionals and carers involved in 25 cases were interviewed. The findings show that the Mental Capacity Act was welcomed by most participants who felt that it gave greater clarity to a confusing area of practice. Overall, health and social care staff are following the statutory guidance when making decisions. However, a significant minority of best interest decisions were being made for people who had either been shown to have capacity, had been wrongly accessed as lacking capacity, or could have been supported to make decisions with help. A number of recommendations are made for improving policy and practice.
Local authority personal social services statistics: guardianship under the Mental Health Act 1983, England 2012
- Author:
- NATIONAL HEALTH SERVICE. Information Centre for Health and Social Care
- Publisher:
- National Health Service. Information Centre for Health and Social Care
- Publication year:
- 2012
- Pagination:
- 12p.
- Place of publication:
- Leeds
This report contains information on the use of Guardianship under Section 7 and 37 of the Mental Health Act 1983 during the reporting period 1st April 2011 – 31st March 2012. It contains information on new, continuing and closed cases at a National, Regional and Local Authority level and includes breakdowns by gender, the type of Guardianship and type of Local Authority. Data was collected from all 152 Local Authorities with Social Service responsibilities. The number of new Guardianship cases fell by 5% between 2010/11 and 2011/12 from 347 to 331 cases. This is a much smaller reduction than between the previous two reporting years, which saw a notable fall of 21%, possibly attributable to the introduction of new Mental Capacity Act Deprivation of Liberty Safeguards and Community Treatment Order legislation. This is the seventh consecutive decrease in the numbers of continuing cases. The number of cases continuing at the end of the year decreased by 26%, and the number of cases closed during the reporting year was 357; a decrease of 33%. Local Authorities in the North West had the highest ‘turnover’ of guardianship cases in England during the 2011/12 reporting period, having the highest numbers and proportions of both new cases and closed cases, as well as continuing cases.