Day 32 was adopted by Lucy Series. Lucy has blogged about LB before, including shortly after he died. Lucy offered to adopt a day and blog for us, you can read her full post here. This is what she had to say:
What happened to LB, and to LB’s family, raises so many issues it’s difficult to know where to start. Today I want to take up one theme from the Connor Manifesto: ‘Prevention of the misuse/appropriation of the mental capacity act as a tool to distance families and isolate young dudes’. I want to talk about what families can do about this issue under the current law, and then what kinds of broader changes people might want to campaign for.
Lucy’s post provides context and information about the Mental Capacity Act and the role that families can play, when supported and enabled to do so. It also directly focuses on what parents and family members can do if they feel shut out:
Under the MCA, families need to know that there are several points at which they should be involved in decisions about their relatives:
- People should not be found to lack mental capacity unless all practicable steps to help a person to make a decision for themselves have been taken without success. In the MCA Code of Practice, Chapter 3 discusses ways of supporting people to make a decision, and one suggestion is that families should be involved in helping a person to make a decision for themselves.
- If a person has been found to lack mental capacity, and a best interests decision has to be made, decision makers must consult with families involved in caring for a person or interested in their welfare if it is ‘appropriate’ and ‘practicable’. In emergency situations, it might not be, and sometimes if there are serious safeguarding concerns it might not be appropriate to consult family, but most of the time it will be and families should be involved. Ambitious about Autism, Mencap and the Challenging Behaviour Foundation worked with Irwin Mitchell Solicitors to develop a tool to help families members who feel that they are being pushed out of decision making.
- Sometimes families can find it hard to access information about a relatives’ care or treatment by services. If the person has mental capacity, then they can consent to them being given access to the information. If they lack mental capacity, families will have to show that it is in the person’s best interests for them to be given confidential information about their treatment.
- Where families dispute the outcome of a capacity assessment or best interests decision made by professionals, there are some things they can do, although unfortunately there are no ideal solutions. They should start off by voicing their concerns to decision makers. If that fails, they could consider making a complaint through the authority’s complaints system (and ultimately, if they are not satisfied with its outcome, they can complain to an Ombudsman for health or social care). If the public body or the family are able to finance it, it may be useful to involve an advocate or a mediator. Or, if the dispute is serious and intractable, they may need to consider applying to the Court of Protection. Some guidance on this is available here.
Lucy goes on to discuss the ridiculous misuse of the Mental Capacity Act as a tool to exclude families, and she introduces the UN Convention on the Rights of Persons with Disabilities and Supported Decision Making. It’s really worth reading the whole thing. Thank you.