scholarly journals A human rights approach to advocacy for people with dementia: A review of current provision in England and Wales

Dementia ◽  
2018 ◽  
Vol 19 (2) ◽  
pp. 221-236 ◽  
Author(s):  
Jeremy Dixon ◽  
Judy Laing ◽  
Christine Valentine
Keyword(s):  
Human Rights ◽  
Current Practice ◽  
Case Law ◽  
Persons With Disabilities ◽  
England And Wales ◽  
People With Dementia ◽  
Mental Capacity Act 2005 ◽  
United Nations Convention ◽  
Mental Capacity Act ◽  
Review Current

In this article, we review current advocacy services for people with dementia in England and Wales (provided, respectively, under the Mental Capacity Act 2005 , the Mental Health Act 1983 /2007 and the Care Act 2014) through the lens of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). We examine what a human rights’ approach to advocacy support would entail, and whether current frameworks in England and Wales are adequate for this approach and provide a sufficient safeguard. First, we consider how the human rights of persons with dementia have become increasingly important and the extent to which the CRPD provides an opportunity to bolster safeguards and protection. Second, we discuss cause and case advocacy, and how these advocacy models could be shaped by the CRPD to promote the rights of persons with dementia at each stage of the disease. Third, we highlight current dilemmas and challenges in the provision of advocacy support in England and Wales by focusing on case law, commissioning of services and current practice. In particular, we analyse how the different legislative schemes have given rise to some confusion about the various advocacy provisions, as well as potential for overlap and discrepancies between different regimes. We also highlight the need for further research to address important gaps in knowledge, including the scale of need, patterns of referral and attitudes to advocacy services. The article concludes by highlighting how advocacy support could be recalibrated as a universal right to promote the aims and aspirations of the CRPD, and how education is needed to address the stigma of dementia and promote the benefits of advocacy in protecting the rights of those with dementia.

Is mental capacity in the eye of the beholder?

2017 ◽  
Vol 11 (2) ◽  
pp. 30-39 ◽  
Author(s):  
Alex Ruck Keene
Keyword(s):  
International Law ◽  
Design Methodology ◽  
Case Law ◽  
Mental Capacity ◽  
Persons With Disabilities ◽  
England And Wales ◽  
Content Type ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

Purpose The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity. Design/methodology/approach Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”). Findings It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Research limitations/implications It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgments based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Originality/value This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD.

scholarly journals Understanding community care law in England and Wales

2009 ◽  
Vol 15 (6) ◽  
pp. 428-433 ◽  
Author(s):  
Danny Allen
Keyword(s):  
Mental Health ◽  
Community Care ◽  
Mental Health Problems ◽  
Case Law ◽  
Mental Capacity ◽  
Care Provision ◽  
Care Programme ◽  
England And Wales ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

SummaryAlthough psychiatrists in England and Wales are generally familiar with the Mental Health Act 1983 and the Mental Capacity Act 2005, there is a body of law that is available to assist patients in the community with which they are generally less familiar. There are two main reasons for this. The first is that it is a rather confused amalgam of different statutes and case law affecting each other in ways that are less than clear. The other is that the care programme approach (CPA) was meant to cut through all this and make care provision straightforward. In fact, the latter has never been the case and community care law has always sat uneasily alongside the CPA, but in October 2008 the CPA was withdrawn from some patients with mental health problems. This article explains what is meant by community care law and how psychiatrists can use it to help their patients.

scholarly journals Mental capacity: Different models and their controversies

2017 ◽  
Vol 23 (6) ◽  
pp. 366-374 ◽  
Author(s):  
Brian Joseph Murray
Keyword(s):  
Relevant Information ◽  
Mental Capacity ◽  
List Type ◽  
Persons With Disabilities ◽  
Alternative Models ◽  
Mental Capacity Act 2005 ◽  
United Nations Convention ◽  
Mental Capacity Act ◽  
The Uk ◽  
The Impact

SummaryModern legislation in the UK addressing the issue of decision-making ability uses tests of mental capacity based on the individual's ability to understand relevant information given to them. Alternative models of mental capacity do exist, but are largely considered defunct. This article reviews these alternative models and considers their importance. Far from being irrelevant to modern views on mental capacity, these models have already been incorporated into legislation such as the Mental Capacity Act 2005. A better understanding of these models can improve clinicians’ understanding of mental capacity in general. Modern controversies such as the impact of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) are discussed and ways in which our understanding of mental capacity may have to change in the future are addressed.LEARNING OBJECTIVES•Appreciate the different ways of considering an individual's mental capacity•Understand the primacy and limitations of the functional test of mental capacity•Use this understanding to manage potential conflicts or disagreements when considering an individual's mental capacity

‘Turning up the volume’: Increasing respect for the wishes and feelings of women with intellectual impairment in decisions about their reproductive rights in England and New Zealand

2021 ◽  
pp. 096853322110447
Author(s):  
Joanna M Manning
Keyword(s):  
Decision Making ◽  
New Zealand ◽  
Case Law ◽  
Best Interests ◽  
Family Court ◽  
Persons With Disabilities ◽  
Court Judge ◽  
Mental Capacity Act 2005 ◽  
The Will ◽  
Mental Capacity Act

In 2004 a New Zealand Family Court Judge ordered that two extremely serious and irreversible interventions (termination of pregnancy and sterilization) be carried out on a 29-year-old woman, with mild to moderate intellectual disability, over her strenuous objection. Though her appeal was partially successful, an option which both respected her wishes and feelings and in all likelihood better promoted her best interests was not explored. A decade later, another Family Court judge held that it was in the best interests of a young woman with Down syndrome to be sterilized for contraceptive purposes, in spite of her indication that she might wish to have babies one day. The decisions were made under NZ’s adult guardianship legislation, into which courts have incorporated a best interests principle, which they have interpreted broadly. But, in contrast to the Mental Capacity Act 2005 (MCA), NZ’s statute lacks any requirement for decision-makers to take into account the wishes and feelings of the person with mental impairment. That requirement has been the catalyst for a more-empathetic, person-centric interpretation in English case law. Further reform to the MCA is advocated for, which would give formal primacy to P’s wishes and feelings through presumptions or special phrases, as well as requiring a reasoned justification for departing from them. The Convention on the Rights of Persons with Disabilities goes even further: the article 12 right to legal capacity requires respect for the ‘will and preferences’ of people with mental impairments and controversially, according to the UN Committee’s interpretation, requires the replacement of substitute decision-making regimes based on best interests with supported decision-making frameworks based on a person’s will and preferences.

scholarly journals Best interests, mental capacity legislation and the UN Convention on the Rights of Persons with Disabilities

2015 ◽  
Vol 21 (3) ◽  
pp. 188-195 ◽  
Author(s):  
Brendan D. Kelly
Keyword(s):  
Mental Health ◽  
Northern Ireland ◽  
United Nations ◽  
Mental Disorder ◽  
Mental Capacity ◽  
Best Interests ◽  
Persons With Disabilities ◽  
Mental Capacity Act 2005 ◽  
United Nations Convention ◽  
Mental Capacity Act

Summary‘Best interests' is a key principle of the Mental Capacity Act 2005 (England and Wales), Mental Capacity Bill (2014) (Northern Ireland) and Mental Health Act 2001 (Ireland), although there are currently proposals to remove ‘best interests' from Irish legislation. Legislation in Scotland refers to ‘benefit’ resulting from interventions. Judicious use of ‘best interests', in line with guidelines that prioritise the person's autonomy, will and preferences, is a powerful way to promote the values and rights that underpin the United Nations Convention on the Rights of Persons with Disabilities and to safeguard the dignity of individuals with mental disorder and/or reduced mental capacity.

scholarly journals Lasting powers of attorney: implications for clinicians

2012 ◽  
Vol 18 (3) ◽  
pp. 205-212 ◽  
Author(s):  
Martin Curtice ◽  
Isurima Katuwawela ◽  
Richard McCollum
Keyword(s):  
Case Law ◽  
Mental Capacity ◽  
Personal Health ◽  
England And Wales ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
Mental Capacity Act ◽  
First Time

SummaryIssues relating to capacity are increasingly topical and relevant, particularly following the implementation of the Mental Capacity Act 2005. Powers of attorney are one such issue that requires the assessment of capacity for their execution. This article focuses on lasting powers of attorney (LPAs), which were introduced under the Mental Capacity Act in 2007. We describe how LPAs evolved and how they have been used since the inception of the Act. We review salient case law. In doing so, we elucidate pertinent issues for clinicians, particularly in the case of health and welfare LPAs: for the first time in England and Wales, the law allows donors to nominate an attorney to make decisions about their personal health and welfare once they become incapacitated.

scholarly journals A Pilot Study of the Early Experience of Consultant Psychiatrists in the Implementation of the Mental Capacity Act 2005: Local Policy and Training, Assessment of Capacity and Determination of Best Interests

2014 ◽  
pp. 149 ◽  
Author(s):  
Ajit Shah ◽  
Chris Heginbotham ◽  
Bill Fulford ◽  
Natalie Banner ◽  
Karen Newbigging ◽  
...  
Keyword(s):  
Learning Disability ◽  
Mental Capacity ◽  
Best Interests ◽  
Local Policy ◽  
England And Wales ◽  
People With Dementia ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
The Government ◽  
Mental Capacity Act

<p>The Mental Capacity Act 2005 (MCA) was partially implemented in April 2007 and fully implemented in October 2007 in England and Wales (with the exception of the Deprivation of Liberty Safeguards which were implemented in April 2009). The government estimated that up to 2 million adults in England and Wales may have issues concerning their decision-making capacity (henceforth ‘capacity’), and these will included 840,000 people with dementia, 145,000 people with severe learning disability, 1.2 million people with mild to moderate learning disability and 120,000 people with severe brain injury. Additionally, the prevalence of schizophrenia, mania and serious depression are 1%, 1% and 5% respectively, and some of these individuals may also lack capacity. Moreover, up to 6 million family and unpaid carers are estimated to provide care or treatment for individuals lacking capacity. Furthermore, many other people who do not lack capacity may use aspects of the MCA for future planning.</p>

scholarly journals With and Without 'Best Interests': the Mental Capacity Act 2005, the Adults With Incapacity (Scotland) Act 2000 and constructing decisions

2016 ◽  
Vol 2016 (22) ◽  
pp. 17
Author(s):  
Alex Ruck Keene ◽  
Adrian D Ward
Keyword(s):  
Case Law ◽  
Mental Capacity ◽  
The Other ◽  
Best Interests ◽  
Persons With Disabilities ◽  
The United Kingdom ◽  
Mental Capacity Act 2005 ◽  
Legislative Framework ◽  
Mental Capacity Act ◽  
Made In

<p>This article compares the bases upon which actions are taken or decisions are made in relation to those considered to lack the material capacity in the Mental Capacity Act 2005 (‘MCA’) and the Adults with Incapacity (Scotland) Act 2000 (‘AWI’). Through a study of (1) the statutory provisions; and (2) the case-law decided under the two statutes, it addresses the question of whether the use of the term ‘best interests’ in the MCA and its – deliberate – absence from the AWI makes a material difference when comparing the two Acts. This question is of considerable importance when examining the compatibility of these legislative regimes in the United Kingdom with the Convention on the Rights of Persons with Disabilities (‘CRPD’).</p><p><br />The article is written by two practising lawyers, one a Scottish solicitor, and one an English barrister. Each has sought to cast a critical eye over the legislative framework on the other side of the border between their two jurisdictions as well as over the framework (and jurisprudence) in their own jurisdiction. Its comparative analysis is not one that has previously been attempted; it shows that both jurisdictions are on their own journeys, although not ones with quite the direction that might be anticipated from a plain reading of the respective statutes.</p>

scholarly journals End-of-life Decisions for Patients with Prolonged Disorders of Consciousness in England and Wales: Time for Neuroscience-informed Improvements

2020 ◽  
Vol 30 (1) ◽  
pp. 73-89
Author(s):  
PAUL CATLEY ◽  
STEPHANIE PYWELL ◽  
ADAM TANNER
Keyword(s):  
Disorders Of Consciousness ◽  
Best Interests ◽  
Legal Rights ◽  
Persons With Disabilities ◽  
End Of Life Decisions ◽  
England And Wales ◽  
Mental Capacity Act 2005 ◽  
Life Sustaining Treatment ◽  
The Law ◽  
Mental Capacity Act

AbstractThis article explores how the law of England and Wales1 has responded thus far to medical and clinical advances that have enabled patients with prolonged disorders of consciousness to survive. The authors argue that, although the courts have taken account of much of the science, they are now lagging behind, with the result that some patients are being denied their legal rights under the Mental Capacity Act 2005. The article further argues that English law does not comply with the United Kingdom’s commitments under the United Nations Convention on the Rights of Persons with Disabilities. Stressing the need for the law to keep in step with advances in science, the article concludes with robust recommendations for improvements, based on the latest research in neuroscience, to the way in which life-sustaining treatment decisions are made. This would mean that the wishes of patients, including those with covert awareness, can be better reflected in best interests assessments.

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