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Understanding mental capacity
Understanding mental capacity

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1 How the law is changing

Mental capacity as it is understood and managed through the law may change in the next 10 years. This is affecting legislation in England, Wales, Northern Ireland and Scotland. You now hear from some of the people who are closely involved with changes to mental capacity law in the UK and consider the possible future of mental capacity law in the UK.

Brendan Kelly has an in-depth understanding of matters as they are currently affecting the Republic of Ireland. In theaudio below he talks about revisions to mental capacity law in the Republic of Ireland which were incorporated in the Mental Capacity Bill of 2015. (A bill is a proposal for a new law, or a proposal for a change to existing law, that is presented for debate in Parliament.) Brendan discusses whether the different models of decision making defined in the law can help those who may lack metal capacity. He also suggests how legislative advances can be made in this area in the future.

Looking at countries other than your own in this way can bring different perspectives. As you listen consider what changes might happen and why they are occurring.

Download this audio clip.Audio player: Audio of Brendan Kelly: Revising, reforming and reframing
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Audio of Brendan Kelly: Revising, reforming and reframing
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Now listen to three short audios that talk about changes in legislation in England and Wales, Northern Ireland and Scotland. Tim Spencer-Lane talks about England and Wales, Gavin Davidson about Northern Ireland and Colin McKay about Scotland.

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Audio of Tim Spencer Lane
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England and Wales:

Tim discusses the Mental Capacity 2005 which covers England and Wales and in particular two important principles: the assumption of capacity and supported decision making. He discusses the challenges the Act has faced especially around its poor implementation and suggests that there are likely to be big changes in next ten years to address the need to include much more provision for recognising people’s wishes and feelings as driven by United Nations Convention on Rights of People with Disability and also to address the Deprivation of Liberty Safeguards which are not working properly

Download this audio clip.Audio player: Audio of Gavin Davidson: Incapacity law in Northern Ireland – proposed frameworks
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Northern Ireland: The current law has both strengths and limitations. The proposed new framework was passed in May 2016 but may not be implemented for three to four years. Will replace the relevant common law and Mental health Order with a capacity based law. Will it introduce the use of more formal processes in decision-making?

Download this audio clip.Audio player: Audio of Colin McKay: Incapacity law reform in Scotland: a chance to lead again?
Audio of Colin McKay: Incapacity law reform in Scotland: a chance to lead again?
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Scotland: was progressive principle-based legislation but there are now significant concerns about its practical application in particular the interpretation of the Deprivation of Liberty safeguards. Following a consultation more reforms are being suggested including a new form of ‘graded guardianship’ and the possibility of a fused mental health and mental capacity law.

Activity 1 How the different nations are changing

Timing: Allow about 5 minutes

Think about the information and opinions you’ve just heard. Are there similarities between the different UK nations or is each country different?

The four interviewees summarise what practitioners think may happen in the next ten years. Are these developments the same in each country? Is there anything that surprises you when they were talking? Make a note of your thoughts in the box below which will help you in this week’s quiz.

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Comment

Similarities

Similarities between the different nations include the principles upon which the legislation and subsequent processes are based – these were outlined in Week 3.

For all nations, proposals to change legislation are affected by case law such as the Cheshire West case.

Differences

Differences included the fact that the mental capacity and mental health legislation in Northern Ireland has been fused. This may be something that Scotland will adopt.

Most of the differences between nations tend to be in the use of language. The dates of legislation are also different.