Why MCA? (because CRPD?)

Wishes

In the darkness you can find a light, if you look for one.  The UN Convention on the Rights of Persons with Disabilities (CRPD), which came into force in 2008, could be a light to illuminate social work with adults.  Upholding and further expanding the principles enshrined within the Human Rights Act (1998) and the Mental Capacity Act (2005) making a paradigm shift away from a welfare response or functional/medical perspective to a rights-based approach, ensuring that persons with disabilities have access and can participate in decisions that affect their lives and seek redress for violations of their rights.  

Crucially, it is a move away from persons with disabilities being considered as objects of charity, with social workers there to rescue or fix them.  As Beckett put it in his novel Molloy “against the charitable gesture [of social workers], there is no defense that I know of”.  It is time to shake off this image of the profession.  Social work has a unique specialism.  That specialism is human rights.  The MCA, in conjunction with the CRPD provides for a powerful legal framework for modern social work promoting rights based, relational practice.

In the UK, the CRPD is enshrined within the Human Rights Act (1989), the Disability Discrimination Act (2005) and the Mental Capacity Act (2005).   Article 13 CRPD significantly expands the positive obligations we must uphold to ensure justice.   Over 100 years since Josiah Wedgewood argued in 1913 that “our object.. is to secure justice for everybody” (campaigning against the draconian Mental Retardation Act), it still feels like we are long way from this when #JusticeforLB and supporters still have to fight for the rights of their family members to be upheld, even when it is upheld that serious failings contributing to neglect have occurred.  When it comes to adults with a learning disability, in adult social work, we still on a daily basis find that people experience fundamental breaches of their human rights.  

Take, for example, the right to participate in elections, to do something as fundamental to citizenship as casting your vote. Article 29 CRPD requires signatories to guarantee the same political rights and opportunities as non-disabled citizens.  There is no mental capacity test in relation to the right to vote.  Yet adults with learning disabilities continue to experience discrimination through suggestions that they lack capacity to participate.  Our best guess is that between a fifth and a third of adults with a learning disability turn out to vote in UK General Elections.  Arguments all seem to relate to a suggestion that adults with a learning disability will make “unwise decisions” about who to vote for, that they will be unduly manipulated into choosing who they like the look of the most, which will somehow undermine the whole process. Of course, the fact that people all over the world have been voting in elections based on who they like the look of the most for generations doesn’t seem to enter the minds of “gatekeepers” who are determined to prevent people who have a learning disability label from exercising the most fundamental of rights to have their voice heard and to influence decision making. 

Another example of the potential mind-shift and behaviour change which is required is writ large within CRPD Article 14 which provides that ‘disability shall in no case justify a deprivation of liberty’.  This should challenge all our thinking in social care about the framing of the Mental Health Act Amended (2007) which still includes autism and learning disability as a legal basis for detention.  Case Law which has helped BIAs post Cheshire West in applying the Mental Capacity Act (2005) has absolutely clarified that having a clinician tell you that you are on the autistic spectrum (which by definition means it covers everyone) or have a learning disability (does anyone even know what this actually means) is not a legal basis for authorisation of a persons liberty being deprived.  See also Article 23 which provides that ‘in no case shall a child be separated from parents on the basis of disability of either the child or one or both of the parents’.  The genius of the CRPD and the MCA is that as “professionals” we can no longer use a characteristic associated with a clinical label and use it to justify poor decision making.

For our colleagues in health, the CRPD is particularly challenging, perhaps Article 15 being the most difficult for them to reconcile with “no one shall be subjected without his or her free consent to medical or scientific experimentation”.   Yet case law emerging from the Courts is upholding that the person’s wishes, feelings and beliefs must be heard and upheld as central to decision making.  So called “unwise decisions”, which are the very central tenant of ‘sparkling lives’, filled with light, colour and happiness, should be our ambition in social care, not safe, protected and ultimately dull lives.  The Right to Happiness.  Wonder if that could be a light that never goes out ignited by the CRPD and fueled by the MCA?  

The practice implications are exciting.  This is what we came into social work to do (no body came into practice to spend ages behind desks filling in Assessment Forms).  The #unwisedecision campaign led by the @AdultPSWNetwork as a Call to Action on National Mental Capacity Day (15th March 2016) to highlight that Statutory Principle 3 of Section 1 of the Mental Capacity Act provides for the right to make decisions we as professionals may deem unwise without having capacity questioned. The series of 3 articles which @CommunityCare are published in support of MCA Day further explain why MCA matters.  People aren’t dying young from having too much risky fun.  

Faced with this, the question arises, what can I do on a local level about it?  We are taking positive direct action with this year’s Promote the Vote  campaign.  If you are prevented from participating in democratic processes, if you are denied your Article 29 CRPD rights, if you don’t register to vote, then you have no voice.  We feel really strongly that our job is to make sure people know about and understand their right to participate.

Our biggest challenge, however, is the understanding of our clinical colleagues in health services.  For too long they have understood that we are there to broker access to care.  Home Care.  Care Homes.  Respite Care.  In adult social work we may be on the verge of a paradigm shift, but our colleagues in health are not necessarily ready for us to make it.  In our Local Authority we are trying to help them with this.  We have run training on the Mental Capacity Act in Practice for nearly 1000 colleagues from health, housing, police and provider services.  We have brought in the fantastic @SteveBroach to further reinforce the messages about what the Courts are telling us about people’s wishes, feelings and beliefs being foremost in decision making.  We have also set up a Risk Enablement Panel just for the hospital, to support colleagues to understand that they don’t have to own risk, the person is an adult and if they want to go home, they can own their own risk.  After all, how risky really was it when Connor Sparrowhawk and Steven Neary said “I want to go home”?  On reflection, not risky at all, exceptionally, deeply sadly, capacious.  

So, if you were inspired by the MCA Call to Action – if you feel that the principles of the CRPD are why  you wanted to be a Social Worker – here are a few things you could do to be a great, rights based practitioner:  

1 – be part of Promote the Vote – help people know their rights and support them to get registered to vote.  What they do from there is is their choice.  But importantly, they are able to make it.  

2 – check out people in Supported Living homes are actually living real lives, make sure that the principle of “no bed times” is one that they experience.  

3 – Enable Risk.  Properly.  Encourage your managers and senior NHS staff to visibly support you by owning risk.  Risk is a part of life, it is part of growing and learning.  Make it a positive thing.  

4 – Refuse to be part of any “professionals meeting” that doesn’t include the person.  If appropriate support and arrange for independent advocacy and interpretation to help the person be involved and understand so that they can communicate their wishes, feelings and beliefs.  

5 – Recognise and celebrate your own humanity.  Making an #unwisedecision is something we all do.  It is part of being human.  Build an unwise decision wall and celebrate being part of humanity.  Learning by experiences which others think are wrong, risky or unsafe is part of life and how our lives are enriched.  Be that Social Worker who makes life better.  

And finally 6 – we aren’t the police.  Safeguarding doesn’t mean you have legal powers.  Section 42 of the Care Act is a duty to make inquiries only.  The MCA (2005) and the Human Rights Act (1998) are law – they provide the legal framework within which we operate.  Use them.

http://www.communitycare.co.uk/2016/03/15/social-care-wrong-view-risk-detriment-learning-disabled-people/

http://www.communitycare.co.uk/2016/03/14/social-workers-can-resist-risk-averse-practice-uphold-human-rights/

http://www.communitycare.co.uk/2016/03/11/mental-capacity-act-treating-people-human-beings-worthy-respect/

 

 

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9 thoughts on “Why MCA? (because CRPD?)

  1. Local Authority says No!

    Eddie Hanlon has been diagnosed as autistic, with ADHD and dyspraxia.
    In 2012 he was placed in a residential school, [to increase his separation anxiety], near his home for a trial period with support for his challenging behaviour
    But he did not cope and harmed himself as well as causing damage to the school.
    [Its called communication, “I want to go home”]
    So what did the “Specialist Professionals”[and the “Managers”] do, –
    Its obvious isn’t it they would have sent him back home with a Personal Budget (2009) for care and support to meet his “very complex needs”
    But no, to make him worse, the “Specialist Professionals”[and the “Managers”] – guess what-
    He was sectioned and moved to a hospital in Northampton with 100 unexplained deaths to its credit- the closest facility capable of dealing with his complex needs. [His complex needs include the huge profits the shareholders receive from these “Specialist Centres” and savings on Local Authority Budgets]
    A year later he was moved [its those “Professionals” again] [and the “Managers”] to Newcastle after a CQC report in September 2013 raised concerns over use of seclusion, staffing and medication.
    By now this boy is traumatised for the rest of his shortened life by unaccountable non transparent,- you’ve guessed it- “Specialist Professionals” [managers and shareholders]
    Joe McEvoy, NHS England South West Assistant Director of Specialised Commissioning, said families can be “desperately sad” when children with “very complex conditions have to be treated far away at highly specialist centres”.(yes you are simply the very complex condition.)
    There is an alternative with personal budgets and experienced care and support at home with his parents.
    This has been obstructed and derailed by Social Services and Councils in favour of shareholders.

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  2. https://finolamoss.wordpress.com/2015/12/03/the-convention-on-the-rights-of-persons-with-disabilities-be-their-voice/

    Please read my blog post on it.

    They cannot remove legal personality, and the MCA functional test, judges how a person’s mind works, which is impossible and illegal under UN Convention. .

    Not only is the capacity assessment under MCA illegal under UN, but even the MCA provisions themselves, are being applied illegally under MCA, and our own law

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  3. The learning disabled/autistic and the ever expanding group of those whose lives are controlled by the state via the MCA have no choice and no rights.

    See https://finolamoss.wordpress.com/2015/11/04/a-life-without-choice-let-alone-independence/

    They are being targeted at 17, removed from their parents at 18 causing huge trauma, against theirs and their parents wishes for life in private supported living with strangers for maximum, often venture capital profit, with little oversight of this provision.

    The MCA, gives neither them, nor their parents any rights.

    The vulnerable, have been made by the MCA, cash cows, for private profit, and via blanket capacity tests, and ignoring the HRA.

    And, lack of any independent representation for the parents, or those rendered so cruelly, illegally, and discriminatorily incapable for life.

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  4. Being present at a meeting will do no good if a COP, as is happening are declaring that the LD/Autistic are incapable of making any decisions as to their welfare.

    And, despite s4 MCA, the wishes of the illegally deemed incapable, are being ignored.

    We must recognise, that, now most LD/Autistic, unless they can escape a label, are being put in placements for profit, where they have no choice for life.

    And, whether, or not, they vote as indeed, nearly the majority of non LD/autistic do not, is the least of their worries.

    They worry about when/if they will go out, whether/if they ever see the same care worker again, if and when they will ever see their family, or a non stranger again.

    Like

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