Wednesday, 25 April 2012

Capacity, lawyers and ramblings

First - I have no idea why this blog has got rid of all my spacing but don't have time to work it out right now, apologies!! During the course of my MA I have done some basic learning on capacity. I know the 5 key principles of the MCA and broadly understand the DoLS. But in terms of application there are still areas I'm unclear on and how well trained different professionals may be in this field. Recently I witnessed a client who needed to go to court and give a guilty or not guilty plea. The weeks before the hearing their mental health had deteriorated quite a bit and it was thought this was largely due to the anxiety about the upcoming hearing. In the days before, my client was asked to call the lawyer to tell them the plea so they could prepare the case. The client refused to do so and then when they did call, it was only to sack the lawyer and ask for a different one to represent them. On the day, the client was incredibly anxious, did not really engage with the lawyer and so it was suggested that they say that the client lacks capacity to make a plea and therefore can be assessed by a psychiatrist. When I was informed of this I thought it was the right decision and wondered why none of the staff had thought in the day or two before that this might end up being the case. Someone expressed the view that the lawyer had only said this because they didn't know how to deal with the client, having only met him years before and therefore wanted to avoid it going to trial if a non guilty plea was given. This lead me to think firstly did he have the capacity to make the decision to change lawyers at the time and therefore end up with one who may have been less experienced at 'dealing' with the client and also it felt sad that it was looked at in that way rather than think we are protecting the client's mental health. I still find it hard to know whether they did have capacity in these two decisions regarding the lawyer and the plea. They can retain the information and communicate the response but can they understand it? I struggle to know. I suppose that's the purpose of the assessment. We had assumed the client had capacity and I had done everything to support the client in making the decision, explaining the outcomes of both pleas and I was aware that the client could make an unwise decision but was it one they understood? Also, are there any lawyers with specific training in working with clients with mental health difficulties? Or much training in this matter? Apologies if this is a really obvious question .

1 comment:

  1. Some thoughts - it would be for the lawyer who the client has instructed to make a decision regarding his capacity to plea - as they would be the decision maker. A support worker might want to nudge them to consider this but it would remain the decision maker's responsibility. So actually, it was right that the solicitor made this call.

    And yes, there are some specialist lawyers.

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