'Organising objects': support for legal capacity in adult safeguarding and Article 12 of the UN Convention on the Rights of Persons with Disabilities

Keeling, Amanda (2017) 'Organising objects': support for legal capacity in adult safeguarding and Article 12 of the UN Convention on the Rights of Persons with Disabilities. PhD thesis, University of Nottingham.

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This thesis explores social workers’ practice and understanding of support for the exercise of legal capacity in adult safeguarding. The impetus for this study was the ‘revolution’ of article 12 of the UN Convention on the Rights of Persons with Disabilities, which questioned fundamental and long-held legal positions on the rights of people with mental impairments to make decisions about their lives. This shift is a fundamental one, but there is very little existing empirical evidence of how such a revolutionary change in legal frameworks might actually work in practice, and what the challenges may be. Thus, this thesis aimed to empirically examine existing practice, to explore what the baseline of understanding was, and the difficulties that social workers encountered in using support mechanisms. An ethnographic approach was taken, with participant observation of an adult safeguarding team over a 17 week period, followed by interviews with 7 of the social workers who had been closely observed.

The importance of this study is that the focus of the debate on article 12 has been on restoring legal capacity to individuals who had previously been denied it on the basis of their lack of mental capacity. While this is important, and is discussed in this thesis, the empirical work that forms the basis of this study demonstrates that denial of legal capacity affects a much wider group. In this context, ‘support’ may be less about supporting decisions in the particular instance, but rather supporting the individual to effect the decision that they have made, or to continue to be able to make decisions in the future. Using a theoretical framework of relational autonomy and universal vulnerability, the analysis shows that social workers the individual framing of mental capacity in the law means that they struggle accommodate the possibility of support for that mental capacity from a third party. Adults who have mental capacity but are considered ‘vulnerable’ are also significantly disempowered in the safeguarding framework. The social workers see the concept of mental capacity as overly limiting, and that vulnerable adults who are not captured by the Mental Capacity Act 2005 may still lack what this thesis terms ‘relational capacity’. A link made between vulnerability and a lack of relational capacity results in individuals being disempowered, kept as ‘objects to be organised’, rather than agentive subjects.

The conclusion of this thesis is that the potential for undue influence in the exercise of support under article 12 is very possible. The data shows that we must consider carefully how we respond to this, building a universally enabling environment, rather than one which reduces agency and legal capacity.

Item Type: Thesis (University of Nottingham only) (PhD)
Supervisors: Bartlett, Peter
Munro, Nell
Manning, Nick
MacDonald, Ruth
Keywords: legal capacity, adult safeguarding, people with disabilities, disabled
Subjects: K Law > K Law (General)
Faculties/Schools: UK Campuses > Faculty of Social Sciences, Law and Education > School of Law
Item ID: 43475
Depositing User: Keeling, Amanda
Date Deposited: 17 Jul 2017 04:40
Last Modified: 13 Oct 2017 00:12
URI: https://eprints.nottingham.ac.uk/id/eprint/43475

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