Social work and end-of-life care

Social work is important in end-of-life care

It is not wilful neglect under the Mental Capacity Act if you are respecting someone’s autonomy

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130114 MCA legal caseA recent legal case sheds light on the crime of ‘wilful neglect’ in caring for an adult. S44 Mental Capacity Act 2005 makes it an offence for someone who has a duty of care for someone else, for example someone who is disabled or an older person with dementia, to neglect them wilfully.

The manager of a care home was convicted of wilful neglect of a mentally ill woman who was found very ill-kempt in her room in a care home. The care home said that they had left her in a poor state out of respect for her autonomy. The mentally ill woman was capable of making her own decisions in many respects, and the care home manager was motivated by giving her the greatest possible autonomy. She may have got it wrong in some aspects of the care, but because of this motivation, her actions were not wilful neglect.

The judge makes the point that before the MCA the law had a sharp dividing line: either you had mental capacity and therefore nobody could interfere, or you did not have capacity, in which case everything you did was taken over. Now, however, the law is more flexible. It says that carers may take over where there is incapacity, but where the capacity of the person being cared for is variable, there is leeway: where you are letting them make their own decisions autonomously, neglect is not always wilful.

Link to the case report.


Written by Malcolm Payne

22 January 2013 at 11:28 am

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