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About this book

Practice issues surrounding the legal concept of capacity are of fundamental importance to social work. The profession is committed to maximizing service users' autonomy yet vulnerable people may be at risk of abuse or injury if they exercise complete independence – so practitioners need to know in what situations it is appropriate for that autonomy to be curtailed.

This accessible and practically-grounded text equips social workers with the legal knowledge needed to work effectively with some of the most vulnerable people in society. It explores capacity in relation to minors, vulnerable adults and mental health, as well as covering complex issues such as refusal to accept treatment and deprivation of liberty. The book goes on to explore the different legal mechanisms that are available for promoting autonomy and safeguarding people's interests.

The text is supported by a range of innovative features and boxed information to aid learning and stimulate reflection:
- Key Case Analysis boxes summarize the details of particular legislation cases and outline the implications for social work practice.
- Practice Focus boxes apply legal principles and processes to practice through the use of social work scenarios.
- On-The-Spot Questions reinforce understanding and encourage critical reflection

Table of Contents

Introduction

Abstract
It may seem strange to find a book on ‘capacity and autonomy’ in a series of books on social work law, but the practice issues surrounding the legal concept of capacity are of fundamental importance to social work. Social work is profoundly committed to principles of empowerment: speaking for the vulnerable, acting for the vulnerable, promoting the interests of the vulnerable, and essentially this means promoting people’s autonomy. Social work is committed to maximizing people’s independence, here meaning people’s ability to make decisions for themselves, yet there are vulnerable people who may be at risk of abuse or injury if they exercise complete independence — so the question arises, where is it ever appropriate for that autonomy to be curtailed?
Robert Johns

1. What Can Children and Young People decide for Themselves?

Abstract
This chapter explains how the law enables children and young people to make decisions for themselves as they grow older. Instead of making a blanket assumption that no child or young person under 18 can make any decision about anything, the law has evolved to allow for the development of young people’s capacity to make certain kinds of decisions as they grow older. It would be strange if no one under 18 could make any kind of decision yet suddenly on the attainment of their 18th birthday they acquired the capacity to make any decision they wished; and this is not how the law operates. However, this does raise substantive legal and ethical questions about the empowerment of children and young people. At what age, or by what criteria, can under-18s make decisions? What kind of decisions can they make? How should the law operate if young people make decisions that are objectively not in their interests? What should the role of professionals be and, crucially, to whom are they accountable — to parents who are legally responsible for their children, or to the child or young person themselves?
Robert Johns

2. Human Rights and the Development of Law

Abstract
This chapter explores the connections between human rights law and the law in the UK as it applies to making decisions on behalf of vulnerable adults who are considered to have lost ‘capacity’ to make decisions for themselves. In this context, the term ‘vulnerable adults’ is quite wide-ranging so as to include people with mental health issues who are considered to pose a threat, either to themselves or other people. So, here the concern is not just with statutes concerning mental health and mental capacity, but also certain important common law principles that have historically allowed the courts to make decisions for other people when they consider this to be in their interests. Such common law provision claims long-standing historical pedigree, although, as will be seen, the European Court of Human Rights was not entirely happy with the way in which common law could be deployed in order to deprive people of their liberty.
Robert Johns

3. The Mental Capacity Act 2005 Principles

Abstract
This chapter identifies a number of key principles underpinning the Mental Capacity Act 2005 and then goes on to explore how these might apply in fairly typical scenarios. The core principles were summarized briefly at the end of Chapter 2 but here they are explored in more detail, paying attention to how they may apply in practice.
Robert Johns

4. Mental Health, Mental Capacity and Empowerment

Abstract
To what extent can people with serious mental health problems make decisions for themselves? What does the law say regarding the accountability of people with enduring mental health problems for their own decisions? To what extent can people who have serious mental health issues make decisions in relation to their treatment, especially when that treatment may not relate to mental health matters? How does the law that provides for compulsory admission to hospital in the most serious cases connect to the Mental Capacity Act 2005 with its presumption of capacity and empowerment principles? Where exactly is the boundary between compulsory powers in mental health law and the measures that can override people’s absolute rights to autonomous decision-making in the Mental Capacity Act 2005?
Robert Johns

5. Deprivation of Liberty

Abstract
This chapter explores an important civil liberties issue, namely in what circumstances someone loses their right to say where they should live or, in relation to children, where their parents provide for them to live. One circumstance obviously relates to arrest, detention and conviction for criminal offences, but here the focus is on deprivation of liberty which has an ultimate purpose or justification as being in someone’s best interests.
Robert Johns

6. Advocacy and Safeguarding People’s Interests

Abstract
What happens when people cannot look after their own interests? This is an important issue for children involved in care proceedings or legal disputes about their care, and for adults who lose the full ability to make decisions for themselves. What happens when vulnerable adults appear to be in need of protection from exploitation or are vulnerable to some kind of financial abuse? What happens when they know they cannot manage their own affairs or want to nominate someone to look after their affairs for them when they are no longer able to do so? Who has the responsibility for representing the interests of vulnerable adults when there are controls placed on their freedom, or when they are confronted with major changes in living arrangements? What happens when there is a dispute between relatives, local authorities and others concerning what may be in someone’s best interests? What role do the courts play in all of this?
Robert Johns
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