Challenges and concerns
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The Royal College of Psychiatrists have expressed concern about the Home Office’s approach to mental capacity decisions, in particular the difficulties of identifying people who may lack decision-making capacity in detention:
“ There are specific difficulties relating to the assessment of decision-making capacity in people with mental disorders in IRCs. The first is the problem of individuals who lack capacity but speak no or very little English, rendering their lack of capacity less obvious to staff. The second is the fact that capacity can fluctuate in people with mental disorders. The third is that the frequent movement of detainees from one IRC to another reduces the possibility for the sustained therapeutic relationship and for eliciting the consistent, sufficiently detailed psychiatric history that should inform any capacity assessment. Fourth, capacity is time and decision specific and depends on the nature and complexity of the decision in question. Specialist support would be required for individuals with complex needs and problems (including those arising from sociocultural factors) and/or multiple mental and physical conditions.”[1]
These concerns are in conjunction with the lack of screening for people who may lack capacity and the fact that the Home Office policy is reliant on detention staff, the majority of whom will lack clinical qualification, to identify possible situations of lack of capacity in highly challenging circumstances. These issues are further compounded by problems of access to legal advice.
A further factor, as recognised by the Brook House Public Inquiry is that detained people with mental ill health may be more vulnerable to losing decision-making capacity as a result of their detention. The Inquiry identified very serious examples where assessments of decision-making capacity were not carried out in relation to highly vulnerable people, suffering from serious mental illness and in acts of extreme distress such as food and fluid refusal. The report also raised broad concerns about the lack of policy safeguards for people who may lack decision-making capacity and problems with information sharing about people across the Home Office and detention estate. The report also highlighted systemic issues about the lack of independent advocates for people who had been identified as lacking capacity.
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