Friday, March 10, 2017

Peter Bartlett on Implementation of Capacity Legislation

Peter Bartlett -    Casey Photography 
This a summary of the presentation by Peter Bartlett to the Legal Capacity Conference 2016 at University College Cork. The summary was written by Joanna Ralston.

More information on the Legal Capacity Conference -

Slides and videos from the conference –

Professor Peter Bartlett is Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law, University of Nottingham.  The title of his presentation was ‘Capacity Legislation and the Challenges of Implementation’.

Professor Bartlett in referring to the experience in the UK in implementing the Mental Capacity Act 2005 highlighted some of the problems that occurred, some of which may be relevant in the Irish context. The Act has not permeated into the professional population, service users, carers or the general population and is not relied upon very much despite a lot of cash resources being put into its implementation.

The Act has not integrated into the professional culture. Professor Bartlett was of the view that we may have difficulty also in Ireland getting traction for the Assisted Decision-Making (Capacity) Act 2015 and it is something that we are going to have to resource properly.

Professor Bartlett referred to the problem of scale given that capacity issues can virtually cover decisions in any setting. Associated with this problem is how it is possible to get the statute embedded into the way we think so that it becomes more than a tick box exercise. Phrases likes changing professional ethos sound great but how in practical terms is this to be achieved?

How can the Act be successfully implemented from a family perspective? It is difficult to ensure that the family as a unit can function; it is more than just about the Act, it is also about the other family members and how to ensure that those who are most vulnerable are being protected.

He discussed the flexibility of the language in the Act and how much weight should be attached to the language in the Act. he asked, how can “wishes and preferences” be accommodated? In the Irish context the Act refers to will and preferences in circumstances which are “practical”. This raises the questions as to who decides what is practical?

He raised the issue of professional colonization which in his view in the UK is largely by social workers and to some degree medics. The experience in the UK has been that if testing capacity is controversial then it is largely dealt with by professionals. The Act in the UK to a certain extent has allowed professionals to do what professionals want to do. He referred to “collegiate” decision-making where no one has personal responsibility for the decision being taken where families can be pushed aside despite the existence of best interests.

Professor Bartlett also referred to the issue of the courts and the inherent delays in the Court process and that this is not an option for poor people.

Finally, Professor Bartlett referred to the role of the relevant person in Court. The issue here is: can this person give evidence in Court and how should a Judge deal with this person?

Peter Bartlett’s slides:

Video of Peter Bartlett’s presentation.

[Photos by Casey Photography]

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