Technorati href="http://www.technorProfile Thinking Nurse: Mental Capacity Bill and The Rights of Vulnerable People

Thinking Nurse

This blog will reflect my interests in learning disabilities, nursing, nursing theory, philosophy and politics and my general interests in the arts and literature. (Nursing is an art as well as a science!) Philosophy and nursing have been intrinsically linked since the days of Socrates, his mother was a midwife, and taught him everything he knew!

Wednesday, December 15, 2004

Mental Capacity Bill and The Rights of Vulnerable People

There has been a huge furore over the Mental Capacity bill over the last few days. Under pressure from reactionary organisations like SPUC, MP’s have got it into their minds that the bill has something to do with euthanasia, and whipped themselves into a massive moral panic.

There is a danger that this unfounded panic about euthanasia could mean the dilution of the best aspects of the bill, and distract from the most important debate about the bill – whether it genuinely protects the rights of vulnerable people.

The bill itself is tremendously important for people with learning disabilities and for the professionals who work with them. A clue about it’s philosophical direction was given when the decision was made to change the title ‘Mental Incapacity Bill’, the justification for the bill is that it emphasises the recognition of peoples capacities to make important decisions, rather than their incapacities.

The most positive aspects of the bill are:

· The assumption of capacity – this means that you cannot assume someone is not capable of making a decision just because they have a learning disability, or a mental illness.
· The grading of decisions – just because someone lacks capacity to make decisions about some things, does not mean they cannot make decisions about others. There must be proof that a person cannot make the decision if someone else is to make it for them.
· A requirement to assist a person to participate in making decisions – by providing them with accessible information, and giving them the time and support necessary to do this, for example.
· A recognition that people have a right to make decisions about themselves that others might regard as eccentric or unwise.

These provisions, if they were put fully into effect would enormously help learning disability professionals who are trying to enable people with learning disabilities to gain access to generic services. It would put a legal obligation on all professionals in these services to LISTEN TO THE VIEWS of people with learning disabilities themselves – something that all too often does not happen today.

Implemented properly, these clauses would be a challenge to the prejudices that exclude so many people from access to the social and health provision that other people take for granted.

But it is questionable whether the legislation would really make professionals change practices like using inaccessible jargon and language, rushing people, consulting carers rather than the person themselves, or unilaterally making rationing decisions that someone should not receive a particular care intervention because of assumptions and prejudices about the impact of a learning disability on their quality of life or contribution to society.

Even so it would certainly strengthen the arm of self-advocates and others who are trying, in accordance with the aims of ‘Valuing People’ (2001), to ensure that generic services deliver the services that people with learning disabilities need.

A number of organisations have pointed out weaknesses in the bill;
The ‘Making Decisions Alliance’ suggests that the role of advocates needs to be given much more legal force, otherwise the legislation will be “toothless”.

Big holes in the bill have been pointed out by the Mental Health charity MIND, specifically the lack of provision for those patients that fall into the ‘Bournewood Gap’, people who are incapable of giving or refusing consent, and who are detained without being sectioned under the Mental Health Act, and thus gaining the legal protections that this act insists on.

MIND argue that the provisions of the bill do “not contain explicit safeguards to control the use of specified, serious treatment, such as second opinion clinical approval. They contain none of the processes that would monitor care and treatment during hospital admission or in the process of planning for discharge and/or provision of social care in the community. They would not ensure that the rights of patients did not go by default while treatment was being given.”

MIND call for the inclusion in the bill parts of the draft Mental Health Act that were removed – specifically

· notification of help available from mental health advocates
· special authorisation for ECT and serious non-emergency treatment before approval of the treatment plan
· expert, independent approval for the treatment plan
· the appointment of a Nominated Person, who would be consulted about treatment and discharge, and who could apply on the patient’s behalf to the Mental Health Tribunal
· mandatory annual reviews of the treatment plan, and
· access to the independent Mental Health Tribunal about failures by the hospital to comply with the safeguards or to be discharged if the continuing hospital admission was not lawful.

MIND have considered the problems facing people who lack capacity and are detained by the mental health system, organisations like the Greater London Action on Disability feel even more worried about the potential for abuse of vulnerable people, particularly by the people who may be appointed under the provisions of the bill to make decisions on their behalf.

GLAD argue: “as the Bill stands, the risk of exploitation by carers, families and professionals has not been adequately addressed. People who society would consider “vulnerable” are unlikely to be in a position to challenge (legally or otherwise) exploitation by the above mentioned groups of people. GLAD feels that the Bill is utterly naïve and not taking into consideration the full range of possibilities and situations that may arise. There is plenty of evidence from organisations of disabled people of widespread abuse – we believe the government would do well to take this into account and make conclusions having heard the full spectrum of information.”

The Coalition of Organisations of Disabled People are even more fearful of the effects of the bill. They argue
"the Mental Capacity Bill does very little to strengthen our right to choice and control over our lives, and in fact has the potential to further disempower and dehumanise us" It seems that the more directly representative and controlled by disabled people an organisation is, the more sceptical and even hostile to the bill the organisation will be. Nurses should take serious note of this opposition as it comes from the people most likely to be affected by the bill.

The bill seems to be a step forward, at least in establishing that there is a continuum between capacity and incapacity, and suggesting that people who may not have universal capacity should be enabled to make decisions where they do have capacity, and will have ramifications across the healthcare system but it does not resolve the many problems of exclusion, discrimination, exploitation and abuse suffered by many vulnerable people, particularly in the potential power over some disabled people it will give to appointed guardians – these problems are a reflection of the devalued position of these people in a disabling society.

13 Comments:

At 9:10 AM, Blogger Thinking Nurse said...

People looking for further information on the Mental Capacity Bill will find these links useful:

The bill itself:

http://www.publications.parliament.uk/pa/cm200304/cmbills/120/2004120.htm

http://www.publications.parliament.uk/pa/cm200304/cmbills/120/en/04120x--.htm

Supporting the Bill:

http://www.dca.gov.uk/menincap/mcbfactsheet.htm

Supporting the Bill (with some criticism):

http://www.mind.org.uk/News+policy+and+campaigns/Policy/Mental+Capacity+Bill.htm

http://www.makingdecisions.org.uk/

http://www.mencap.org.uk/download/Accessible_summary_MCB.pdf


http://www.learningdisabilities.org.uk/profilenews.cfm?pagecode=ISRVMCLN&areacode=ld_capacity_news&id=6959

http://www.rcpsych.ac.uk/press/parliament/MIBill_briefing.htm

Opposing the bill

http://www.glad.org.uk/responses/mencap0904.shtml
http://www.direct.gov.uk/Audiences/DisabledPeople/Rights/YourRights/RightsArticle/fs/en?CONTENT_ID=4014147&chk=8DNWRh

http://www.ontheside.org/mcbill/

http://www.spuc.org.uk/euthanasia/mcb/info.pdf
(I apologise in advance for the inclusion of this link – but felt it illustrated the kind of hysteria that has been associated with an act that clearly has little/nothing to do with euthanasia – a hysteria that has infected many MPs all too easily).

 
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