Seattle University Collaborative Projects - International Academy of ...

Restriction, Deprivation, and Detention: Limits to Freedom within EnglishMental Health and Mental Capacity LegislationIsabel Clare, University of Cambridge (ichc2@medschl.cam.ac.uk)In England and Wales, the freedom of men and women with a mental disorder or who lackcapacity to make decisions about their own care and treatment can, in certain circumstances, belimited lawfully through the use of appropriate legal frameworks. We use data from a mixedmethodsempirical research study to discuss how such frameworks are used in general and/orpsychiatric hospitals. We will illustrate the breadth of the relevant legislation, which includesboth unconscious patients who are receiving life-saving medical treatment and highly mobilepatients receiving predominantly nursing care. We will also illustrate the confusion relating tothe meaning of “care” and “treatment” and the emergence of new concepts, for example, that of“active” treatment, and rules of thumb differentiating those who are or are not expected tobenefit from treatment. We argue that clinicians struggle to apply these legal frameworks to therealities of patient care.Making Best Interest Decisions for Dementia Patients on Discharge fromGeneral Hospital: Do Family and Friends Fulfil an Effective SafeguardingFunction Under English Law?Charlotte Emmett, Northumbria Law School (charlotte.emmett@northumbria.ac.uk)In this paper we explore the role of family members and friends in the best interests decisionmakingprocess under the Mental Capacity Act 2005 in England and Wales. We ask whether, inthe absence of Independent Mental Capacity Advocates (IMCAs), close family and friends ofolder people with dementia are capable of fulfilling a safeguarding function when decisions arebeing made about where that person should live on discharge from general hospital. Our findingsare grounded in ethnographic ward-based observations and qualitative interviews conducted inthree hospital wards, in two hospitals (acute and rehabilitation), within two NHS healthcaretrusts in the North of England over a period of nine months from June 2008 to June 2009. Weask: Are family and friends there simply in an advisory/supportive capacity or are they oftenseen as the primary decision-makers by professionals? Does this role accord with the incapableperson’s (P’s) view or the family and friend’s own views and expectations of their role? Is thisperception promoted by professionals? Can relatives and friends really be expected to makeobjective assessments of P’s best interests in the context of decisions about where to live andfulfil an effective safeguarding function? Or are there simply too many competing tensions? Ourconclusions suggest that family and friends can only begin to act as an effective safeguard forthose they care about if communication with professionals is improved and they are involvedmore fully in the hospital discharge planning process.243