Social Law Policy (Term Paper Sample)

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CASE STUDY A – CAPACITY FOR PERSONAL RELATIONSHIPS
Introduction
The case of the 39 year old woman (Named Alice* for the purpose of referencing in this case), living in a group home and her decision to marry her partner raises concerns over her ability to make decisions on whether to marry and where to live; given that she suffers paranoid schizophrenia and limited cognitive functioning. It is established that Alice is not in a position to make the decision to get married and the local authorities propose that she is only in a position to make decisions regarding her personal, sexual experience with her partner. In addition, the local authorities propose that for her safety, she should only have limited, supervised contact with her partner. The Court of Protection deems this unreasonable and an infringement to Alice’s privacy; hence suggesting less supervision and extra support from the local authorities as required.
Considering this case on capacity for personal relationships, two legislations apply in analysing the emerging issues. These are the Human Rights Act 1998 and the Mental Capacity Act 2005, both of which can be interpreted to reach a decision on how to treat Alice’s predicament. This paper is a discussion of the two legislations in relation to the case in order to determine the applicable facts and courses of action.
Discussion
The Human Rights Act of 1998 seeks to protect individuals and safeguard human rights and setting minimum standards on how human beings should be treated. The HRA (1998) is highly applicable in this case because various factions as defined by the law may be applied in interpretation of the case as follows:
The right to life as provided in Article 2 of HRA states that authorities must ensure reasonable steps to protect life are taken. This means that the authorities are obligated to take preventative measures to protect a person whose life is deemed to be at risk and hence implement any possible measures to protect life. It is evident from this case that the relationship between Alice and her partner could subject her to risky situations. He not only abuses drugs but is also abusive to her and has been known to misuse her support benefits for drugs. The fact that spending significant amounts of time with her partner puts Alice at risk of non-compliance with medication, deterioration of her illness and other risks can be used as defence by the local authority to explain that the proposal to only allow Alice to see her partner for two hours per month, supervised, is meant to protect her life.
Alice on the other hand may be said to have the right to liberty under A. 5 (HRA, 1998). This Article states that each individual has the freedom to move about as they want without restriction, such as being locked in a room or being detained. The local authorities can be said to be infringing Alice’s right to liberty by restricting her from seeing her boyfriend whenever she wants. The law however provides for exceptions; where the authorities can expressly prove that the person is suffering from a mental disorder and that this has been established objectively through medical expertise. In the Mental Capacity Act (MCA, 2005), it is provided that a person may be deprived of his or her liberty if this is in regard to an order under s. 16(2)(a) (MCA, 1998) concerning the personal welfare of the affected person (Lucas, 2011). The local authorities in this instance have already established that Alice suffers from paranoid schizophrenia and could use this as an argument for restricting her relationship and thus her movements.
A. 8 (HRA, 1998) ensures that individuals have the right to a private and family life. This includes the right to have unlimited and confidential communication, control how information is shared about their private life and not to be followed or investigated without any legal right (Woods, 1999). Unmarried partners are also included as family and Alice’s rights can therefore be said to have been violated. As argued by the Court of Protection, the actions taken by the local authority amount to excessive intrusion into her private life and would cause further distress and disruption to her life and relationship. Restricting when Alice should see her partner and supervising her is an infringement to her privacy and to a great extent a violation to her right to family life.
The right to marry is provided for under A.12 (HRA, 1998) and establishes that any person of legal age has a right to get married. This may emerge in analysing Alice’s case where the local authorities restrict her from getting married. However, the argument may not be effective in allowing Alice to marry because the mental Health act of 2005 also stipulates that individuals who do not have the capacity to make personal decisions are not in a position to enter a civil relationship or get married. This means that the local authority has a valid reason to stop the marriage; given that they have also conducted tests to establish that Alice is incapable of making her own decision on marriage.
The Mental Capacity Act offers provisions on how persons who are unable to make decisions due to mental challenges should be treated at any particular time (Cowan, 2007; Lucas, 2011). It defines the inability to make decisions under s. 3(3) (MCA, 1998), where an individual is said to be incapable of such an action if they are unable to: understand information related to the decision, retain information, weigh and use information in decision making and to communicate such decisions. This is well illustrated in this case where the local authorities consider Alice incapable of making the decision to get married based on her mental illness. According to the law, the local authority is permitted to make the decision on her behalf as long as it is in her best interests.
Section 3 (sub-section 3) in its explanation on ‘inability to make decisions’ provides that, the fact that a person is unable to effectively understand information for use in decision making for a limited period does not render him incapable of making a decision (Craigie, Mackenzie and Rogers, 2013). In this case, it is highly possible that Alice’s decision making ability is affected whenever she gets stress attacks but this does not make her unable to make decisions when her condition stabilises. This should therefore be given consideration.
In section 4 of the Act, a provision for ‘best interests’, ensures that actions taken are only to the best interests of the individual. In determining whether an act is in a person’s best interests, the individual making the determination should not do so barely on the basis of his condition or an aspect of their behaviour; which would otherwise lead to unjust assumptions on what their best interests are (s.4 (1a) MCA (2005). As the local authority makes its decision, it is important that they consider that her happiness is also important even through the apparent risk.
S. 4(4) (MCA, 2005) provides that the determining person must as reasonably practical encourage and permit the person to participate, or attempt to help to help the person improve his ability to participate as much as possible in the decision that affects him (Craigie, Mackenzie and Rogers, 2013). In this case, the local authority must consider helping Alice to possibly participate in the decision making. The fact that she has expressed her wish to marry means that she may be in a position to determine what is in her best interests and merely judging her based on her illness may be inappropriate and unfair (Lucas, 2011).
This case presents a situation in which the local authority seeks to control Alice’s ability to form relationships including marriage and sexual relations. This is open to contention based on section 27 of the MCA which provides that the Act does not permit decisions to be made on behalf of another person regarding consenting to marriage, sexual relations, decree of divorce based following two years’ separation, making an adoption order and discharge or parental responsibilities among others (Cowan, 2007). It is apparent that the local authority aims at preventing Alice from marrying her partner despite her willingness to do so. In addition, the local authority places conditions in the event that Alice and her partner only have sexual relations and their meetings be monitored. By blocking Alice from marriage based on her mental condition, the local authority fails to consider that she has the ability to make her own decisions, especially when she is in a stable condition.
Certain policies, procedures and systems related to social work are also highly applicable in this case and could be used in supporting the adult. Examples include the Community Care Assessment Direction of 2004, the Deprivation of Liberty Safeguarding System (DoLS) policy and the Care Quality Commission.
Under the Care Assessment Direction, Alice’s mental condition and her decision making capability may be assessed to determine whether she needs to be protected as deemed by the local authority (Clements and Mandelstam, 2011). This is done in compliance to relevant public law and the local authority is calling for assessment must gather and provide the Department of Health with enough evidence about Alice to show what her needs are; and also have some standard by which they can prove whether or not Alice requires the services indicated (Clements and Mandelstam, 2011). In conducting the assessment Directions ensure that the process is fair and that the individual understands what is happening, and has an opportunity to make a contribution.
The Care Quality Commission is an independent reg...