Sunday, 3 June 2012

'Best interest' decisions and people with autism/LD - getting the family's voice heard

A facebook friend recently asked for help regarding issues relating to her daughter's mental capacity.  I was able to refer her on for guyidance from Irwin Mitchell Solicitors.  As a result of this exchange, I discovered this new resource and thought I would share it with you:

Ambitious about Autism, Mencap and the Challenging Behaviour Foundation, in partnership with Irwin Mitchell Solicitors, have developed a new resource for parents who feel that they are not being appropriately consulted about the welfare of their loved ones to ensure families are involved in best interest decisions.
The new tool was produced after concerns were raised that many professionals are failing to appropriately consult with families, as required under the Mental Capacity Act 2005. In its latest report into deaths of people with a learning disability in NHS care, Mencap found that many health professionals are failing to abide by the Act and ignoring crucial advice from families.

The leaflet which can be downloaded here, contains two template letters which are intended to help family members who have not been involved, or are concerned that they will not be involved, in the best interests decision-making process. The letters have been written by Alex Rook from Irwin Mitchell’s Public Law Department, who specialises in cases involving the Mental Capacity Act.
Alex says: "If an individual lacks the mental capacity to make a decision for themselves that decision must then be made in their best interests in accordance with the requirements of the Mental Capacity Act 2005.
"The Act requires all professionals, including those from local authorities and the NHS, to consult with family members when an adult lacks the mental capacity to make the relevant decisions themselves. The law on this is clear. We want families to know their rights."
Template letter 1 is intended to be used when family members are concerned that they may not, in the future, be involved in best interests decisions in relation to their loved ones. It clearly sets out the legal requirement to involve them.
Template letter 2 is intended to be used when decisions have already been taken without family members’ involvement. All the text in square brackets should be replaced with individual details.

It should however be noted that this leaflet and the template letters are a general guide and do not replace the need for legal advice on a specific case.

David Congdon, Head of Campaigns and Policy at Mencap says
: “We know from our campaigning work how serious the consequences can be when families of people with severe learning disabilities are not listened to. They often have invaluable knowledge about their son or daughter, for example, they understand the subtle ways in which they communicate or express that they are in pain.

“It is crucial that professionals listen to family carers and use their knowledge to inform decisions being made. This applies to all decisions – those about medical treatment and social care as well as any other decision which affects the person’s life. This is not just good practice it is the law. It is important families understand this and feel able to challenge when they are not being involved.”

You can download a copy of the leaflet here.

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