Pigs in clover

I am happy as a pig in clover this morning, as those lovely folks at Emerald Journals let me have a peek at the latest edition of The Journal of Adult Protection, which is entirely given over to discussing the Mental Capacity Act 2005 (MCA).

Nearly Legal: Wychavon revisited

Back in October I cross posted a brilliant blog piece by Nearly Legal about the ruling in Wychavon District Council v EM [2011], which concerned whether a tenancy entered into on behalf of a person who lacked capacity, without the requisite authority from a deputyship or the Court of Protection, could create a liability for housing benefit.  In the initial judgment it was found that it did not, which potentially posed serious problems for many people without capacity to contract in supported housing.  I encountered significant levels of concern about this ruling from families and providers alike.  Happily, the judgment has been revisited, and Nearly Legal have kindly allowed me to cross post their summary from their blog.  The solution arrived at is not quite so neat and tidy as legal purists might like, but it will certainly be a relief to those reliant on supported housing schemes.

Wychavon DC v EM is a double decision, so to speak, by Judge Mark on a housing benefit matter, with broader implications regarding incapacity. In essence, EM is profoundly disabled (mentally and physically). Her parents moved her from a care home, with the support of Worcestershire CC (which also encouraged the understanding that entitlement to HB would follow), to an annex they constructed at their home. EM had previously lived in the garage at their home, but this was unsuitable as EM required round the clock care from three carers, who needed their own accommodation. EM’s parents could not afford this new arrangement without housing benefit. EM’s dad entered into a purported tenancy agreement with her for an indefinite term (hmm) at (what all agreed) was a reasonable rent. The question for the Upper Tribunal was whether this created a liability to which HB attached.

DoLS: Good news day, bad news day

DoLS have been in the news again, one good story and one less good...

Community Care magazine have written a great article on the DoLS, and also produced a guide to the deprivation of liberty safeguards for care homes produced by Community Care magazine, with some help from John Leighton at SCIE.  Roger Hargreaves of the Mental Health Alliance, interviewed for the piece, makes the point that care home managers can't really be expected to operate without a proper definition of deprivation of liberty - hopefully the Cheshire ruling will offer some more clarity.  But I wonder how many care home managers will read it?!  The key task in the longer term and once the case law has settle down a bit, will have to be a revision of the DoLS code of practice.

Is Article 12 keeping you awake at night?

Because if you are at all interested in issues around mental capacity and human rights (as I tend to assume readers of this blog are), then Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) should be giving you pause for thought.  Article 12 is the right to equal recognition before the law of persons with disabilities.  It has been described as the core of the CRPD, and also as a 'paradigm shift', a 'war of ideas' and a 'clash of creeds' (see Quinn, more on this paper below)  Article 12 stands firmly within the tradition of the social model of disability – with a view of disability as a phenomenon that arises out of social barriers, prejudice and discrimination, in contrast to individualised and medicalised accounts.  On this model, what we call ‘mental incapacity’ arises through a combination of discriminatory attitudes and a lack of supports to assist people with disabilities in decision making. Both of these, being social phenomena, are remediable if we undertake work to challenge oppressive attitudes and ensure resources to support decisions are available.  In the final analysis, the strength of Article 12 may rise and fall with the strength of the social model of disability – which, despite its very important insights, is not without its limitations (see Shakespeare, 2006).  In the meantime, however, there is much to be learned from the debates around Article 12, and I hope to explore them more fully in this blog in this post and others yet to come.

Authoring our ends

For the last two weeks the Court of Protection has been hearing a request from the family of a severely brain damaged who is in a minimally conscious state, to allow her to die.  The official solicitor, who is representing the woman – known as ‘M’ - as her litigation friend, opposes the request.  Until the judgment is published (probably later this week, or early next) we won’t know all the arguments and evidence advanced on both sides.  However, the press are attending the hearing and the family are reported to have said:

‘She can’t move, she can’t speak, she’s fed through a tube, she can’t even enjoy a cup of tea.

'She’s got no pleasure in life; her daily routine is just being taken out of bed, put in a chair, showered, then put back to bed.'

‘There’s no dignity in it.'

‘It’s not a life, it’s an existence and I know she wouldn’t want it.’

They are also reported to have said that ‘she would never want to live a life dependent on others, even if she retained her mental faculties.’

A good read

Probably not for summer poolside reading, but you might be interested to know that Cambridge Journals are offering free access to all journals for the next six weeks.  You can find an index of their journals here.  Here are a few that caught my eye...