'Avoid assumptions about capacity in people with learning disabilities'

The temptation to ensure people with learning disabilities make the ‘right’ decision undermines their autonomy, conference told.

The temptation to ensure people with learning disabilities make the ‘right’ decision undermines their autonomy, a conference was told.

Neil Allen said it is tempting to assess individuals as lacking capacity. Picture: Neil O'Connor

University of Manchester senior law lecturer and barrister Neil Allen made the case that people with learning disabilities should retain their rights of choice, even if healthcare professionals disagree with their decisions.

Supporting decisions, not making them

He told delegates at the Learning Disability Practice Conference 2017 in Manchester this week: ‘You should not be aiming to make a decision on behalf of a person with learning disabilities, but support them to make decision.’ 

He said the meaning of ‘incapacity’ to make a decision should be challenged, because even blinking can communicate a choice.

‘Judges feel we set the bar too high and are being discriminatory towards people with learning disabilities,’ Mr Allen said. He cited the example of expecting a person with learning disabilities to know and understand all the side effects of taking paracetamol. He suggested that most people seeking pain relief would not know or be concerned about this information.

‘We have to give the options and then asses capacity to choose. When we are looking after somebody who is vulnerable, it’s very tempting to find incapacity so we can then step in.’

Denial of rights

Mr Allen also spoke of people with learning disabilities being denied the right to have sex because a lack of health education about sexually transmitted diseases may mean consent cannot be assumed.

He highlighted the case of a married man who was barred from having sex indefinitely by his local authority because it did not believe he had the capacity to give consent.

The man was allowed to resume sexual relations following sex education, and he was awarded £10,000 in compensation following a legal appeal.


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