Children’s social workers may be inadvertently breaking the law when making decisions about the ability of learning disabled parents to care for their children, social care experts have told Community Care. A lack of knowledge of the Mental Capacity Act 2005 (MCA) among children’s social workers means professionals may be making decisions without understanding the duties the law places on them, said Claire Barcham, professional practice development advisor at The College of Social Work.
“The Act is one of the underpinning pieces of legislation that all social workers need to understand,” she said. “There could be issues about not following the law or being clear when someone is mentally incapable if the Act is not understood.”
The MCA, which is designed to support people with learning disabilities or mental health problems to make decisions for themselves and to safeguarding people when they are unable to do so, is typically associated with adult social work practice. However, childcare social workers should apply it in cases where parents they are working with have limited or fluctuating capacity to make specific decisions. For instance, the Act requires that people be given reasonable help to make decisions for themselves.
“In some areas [childcare] social workers are particularly well informed, in others not so much,” said social worker and lecturer Elmari Bishop, who provides training on the legislation and is the College’s spokesperson on the Act. “People seem to be either really well informed or know almost nothing. Social workers are, however, legally required to have regard to the relevant guidance. There is a legal duty there on social workers and saying you didn’t know about it is no excuse.”
While the majority of the Act applies only to people who are aged over 16, Bishop pointed out that some provisions apply to children aged under 16 as well; for instance, the offence of ill-treatment or wilful neglect of a person who lacks capacity can be invoked when the victim is aged under 16.
Poor knowledge of the law was leading to poor decisions by children’s social workers in relation to parents who have learning disabilities, said Philipa Bragman, director of learning disabilities human rights group Change.
“They are very focused on protecting children and often have the view that leaving children with parents who have learning disabilities puts them at risk even when this is not the case. Because of this lack of understanding the Human Rights Act is often not followed, lots of people with learning disabilities are not offered easy read information and, ultimately, families are not being supported to stay together.”
Nushra Mansuri, professional officer at the British Association of Social Workers England, said a lack of training and the divide between adults’ and children’s social work lay behind the problem: “Things are too compartmentalised. Children’s social workers do not have to be experts, but they must have the basics and the ability to go to those who are experts should an issue arise.”
The College of Social Work and the Higher Education Academy are currently working on the creation of a guide on legal matters for university educators that, says Barcham, will help ensure that the Act is covered in social care degrees. But Bragman said that action was needed to get local authorities to improve the training they give existing social workers as well. “Both qualified and student social workers should receive training about how to work with and support parents with learning disabilities and the Act,” she said, adding that ideally the training should be delivered by people with learning disabilities to help challenge assumptions social workers have about them.
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