Andy Mantell, Emma Weeks and Mark Holloway
Research question What are the similarities and differences between Mental Capacity policy and legalisation in England and New Zealand? The Aims were to compare: The Ethos behind the respective policy frameworks. The criteria and process for assessing mental incapacity. Proactive measures for those at risk of losing their mental capacity. Reactive measures for those who have lost their mental capacity Objective: To identify the practical consequences for social workers of these policies and to suggest ways they can be improved.
Determine Identify Charting research Select items Summary the data items question
The study looked at government policy documents, legislation and guidance from the date the legislation was implemented onwards (1988 in NZ and 2005 in the England). To identify current social work practice issues, social work journals were searched using ASUS and SCOPUS, from 2006 onwards. The search terms used included variations for each country, due to the different terminology used.
Leg egislation slation in Engl glan and: d: The Ment ntal al Capacity acity Act 2005, as amended by the Mental Health Act 2007 The Health and Social Care Act 2008 Court of Protection and case/common law. Legi gislat slation ion in NZ: The Protect ection ion of Perso rsonal nal and Proper erty ty Rights ts Act 1988 Case/common law
Engl glish ish sec econd ndar ary y leg egisla lati tion • Mental Capacity Act 2005 Code of Practice (Dept of Con. Affairs 2007) • Deprivation of liberty Safeguards Code of Practice Supplement (Min of Justice 2008) NZ sec econd ndar ary y leg egisla lati tion : • Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008. • The Code of Health and Disability Consumer Rights 1996. Other er NZ guidance dance The Protection of Personal and Property Rights Act 1988 (Pamphlet) (2011) Example of NZ local guidance (Auckland District Health Board): ◦ The Protection of Personal and Property Rights Act 1988 Staff Guide (2010) ◦ Caring for Patients with Diminished Competence (2003)
Guiding principle/ethos behind the legislation 1. How is capacity defined and assessed? 2. Who is involved in assessing capacity and what are 3. their roles? What is the process for assessing someone? 4. What measures can a person take in the event of 5. them losing capacity? What measures can be taken on the person's 6. behalf if they have lost capacity? What safeguards exist for people who have lost 7. capacity? How is the issue of a person who has capacity but 8. is easily influenced by others managed?
Engla gland nd NZ NZ Engla gland nd NZ Practi tice/e e/ethic thica Practi tice/e e/ethic thica l issues ues l issues ues (i) Assumption of (i)Assumption of (i)Assumption of Jurisdiction of the capacity unless capacity unless capacity without court to intervene proved otherwise. proved otherwise. assessment. when post morbid (ii) Enable to (ii)Enable to (ii)Ability to enable behaviours are decide develop or limited by the same as (iii) Capacity is not exercise capacity knowledge, skills before TBI, but necessarily (iii)Orders not due and resources. level of insight wisdom. to unwise (iii) Should and awareness (iv) Act in their decisions Unwise decisions has changed. best interest (iv)Best interest be treated in (v)Least (v)least restrictive isolation? restrictive. (iv) Best interest assessment often subjective
Engla gland nd NZ NZ Engla gland nd NZ Practi tice/e e/ethic thica Practi tice/e e/ethic thica l issues ues l issues ues 2 stage test: What is the Implications of the Whilst TBI is a ‘( i) The diagnostic’ trigger? difference trigger for test: Main elements between assessment due (ii)The ‘functional’ considered in intellectual to a changing test (Understand, Court provided awareness and cognitive profile in weigh-up, retain format for medical insight. inpatient context and communicate report: Abstract exercise assessments What’s the – there is a test) (Bennett occur when more 2010) disorder? difference immediate issue Does person lack between knowing needs to be competence? something and decided upon i.e. Can they being able to use financial or understand the that information in welfare matter. nature and the real world. foresee the consequences? Is this wholly or partly?
Engla gland nd NZ NZ Engla gland nd NZ Practi tice/e e/ethic thica Practi tice/e e/ethic thica l issues ues l issues ues 1. Individual 1. Doctor 1. Structured 1. Person may involved assesses, assessment is perform well on decides, using sometimes a cognitive above test. drawing on the compensatory assessment but 2. Expert opinion MDT or info strategy that not functionally in sought in more from others may provide a practice. complex i.e. formal false 2. Post Traumatic situations. neuro- impression of Amnesia makes 3. Court of psychological functioning in formal protection testing. the real world. assessment where 2. Court makes 2. Third party difficult. disagreement. the decision, opinion can be 3.MDT opinion based on the over-ridden by may vary. medical the decision evidence. maker.
England gland NZ NZ Engla gland nd NZ Practic ice/e e/ethic hica Practic ice/e e/ethic hica l issues ues l issues ues 1. Advanced 1.Advanced 1. Advanced Confusion decisions to directives directives risk between Next of refuse treatment. 2.Enduring being too Kin and EPO 2.Lasting Powers Powers of broad or too of Attorney: Attorney, covers narrow. (i)Financial LPA property and 2. Circumstances change – is (ii) Welfare LPA. welfare matters. LPW still the best person to act for you?
England gland NZ NZ Engla gland nd NZ Practic ice/e e/ethic hica Practic ice/e e/ethic hica l issues ues l issues ues 1.Appointeeship 1. Right 7(4) of Acts in connection PPPR Act 2.Acts in Code of Rights with care or applications can connection with utilised to treatment broad be a very lengthy power – potential care or treatment cover process. 3.Deputy – similar treatment and for abuse. to LPA, but court placement of Long time delay in appointed and people as a the appointment role set by court. temporary of Deputies. 4. Directions from measure when the Court of consent not Protection. available. 5. Deprivation of 2. Welfare or Liberty finance orders Safeguards under the PPPR Act.
Engla gland nd NZ NZ Engla gland nd NZ Practi tice/e e/ethic thica Practi tice/ ce/ethic thica l issues ues l issue ues 2. Office of the 1.Person will not Research 1.Person’s Public Guardian be bound by a limitations confusion often oversees LPA’s Personal Order means voice prevents them and Deputies. unless party to may go being party to 3. IMCAs. the proceedings. unheard. the proceedings. 4. An offence to 2. Regular 2. Some 2. In cases mistreat review and practitioners where limited someone who limited lengths still defining a finances PM not lacks capacity of orders. lack of capacity audited. 3. Court on specifically 3. Ensuring Appoint official appointed excluded criteria compliance with solicitor. 5 .Guidance on solicitor. (such as orders can be involvement in condition, age, problematic. research. appearance etc).
England gland NZ NZ Engla gland nd NZ Practic ice/e e/ethic hica Practic ice/e e/ethic hica l issues ues l issues ues (i)Not covered S25 (4) of 1.Lack of When is doubt by MCA. legislation does knowledge of seek the opinion (i) Covered by consider the case law means of the court. Common Law as degree to which some situational are they or practitioners are incapacity.. could be subject unaware of this to influence by significant. others. 2. Awareness of this issue is rising due to high profile ‘disability hate crimes’.
Limitations. i. Hearing social workers’ voices on practice. ii. NZ – Auckland’s experience is just one example. Addressing the aims: i. Similar ethos, guiding principles assessment criteria (although NZ more nuanced) proactive and reactive responses but the processes and roles diverge. Key practice issues i. The medical and legal professions play a much more central role in the NZ system. ii. NZ has a regionalised approach rather than national approach. iii. UK legislation focuses on individual decisions in isolation, compared to NZ’s broader perspective and recognition of potential influence from others. iv. Both neglect the influence of other environmental factors on individual’s real world decisions. v. A central difficulty for social workers in each countries is how to utilise structured assessments to apply abstract criteria to determine real world decision making.
Both countries have a similar legal framework implemented in a different way. The two approaches to determining capacity were found to have contrasting strengths. ‘Real world’ assessment of capacity was problematic in both countries and is an area where Social Work can make a considerable contribution.
Any y quest estions? ions? Contact Andy Mantell at: A.Mantell@chi.ac.uk BISWG Website : http://www.biswg.co.uk INSWABI website: http://www.biswg.co.uk/html/inswabi.html
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