Independent non-legal advocacy in the child protection context: A descriptive review of the literature.

OBJECTIVE: To review the current literature on the use and value of independent non-legal advocacy for parents in the context of child protection. METHOD: A descriptive literature review was undertaken to identify, review, synthesize and unify the available literature on independent non-legal advocacy for parents in a child protection context. A systematic search resulted in 45 publications published between 2008 and 2021 being included in the review. Each publication was then thematically analyzed. OUTCOME: The role and context of different forms of independent non-legal advocacy are described. This is followed by an overview of the three overarching themes identified through thematic analysis - human rights, improving parenting and child protection practice and economic benefits. CONCLUSIONS: The topic of independent non-legal advocacy in child protection settings is an important, under-researched topic. The increasing number of positive outcomes noted in small scale program evaluations suggests the role of independent non-legal advocate may hold significant benefits for families, service systems and governments. Implications for service delivery include enhanced social justice and human rights for parents and children.

The capacity to consent to sex in mental health inpatient units.

OBJECTIVE: Discussions of capacity to consent in mental health care usually revolve around capacity to consent to treatment. This paper instead explores the issue of capacity to consent to sexual activity in a mental health inpatient setting as a way of exploring capacity from a different perspective. This is not a purely theoretical exercise, with both consensual sexual activity and sexual assault commonplace in mental health inpatient units, current policy and practice approaches are clearly not working and require re-examination. METHODS: Four key frameworks are explored: human rights law, mental health law, the criminal law and the law of tort governing the duty of care. These frameworks are explored by highlighting relevant case law and statutes and considering their potential application in practice. This is undertaken using the state of Victoria, Australia, as a case study. RESULTS: The four frameworks are shown to be consistent with each other but inconsistent with contemporary policy. All four legal frameworks explored require clinicians to take a case-by-case assessment to ensure that a person's right to make their own decisions is preserved 'unless the contrary is demonstrably justified' or where it is 'legally demanded'. While Victorian inpatient units attempt to enforce a blanket ban on consensual sexual activity in inpatient settings, this ban may be without legal basis and may be in breach of both human rights and mental health law. CONCLUSION: In policing the lawful bodily interactions of their patients and pushing sexual activity out of sight, clinicians may be breaching their duty of care to provide sexual health support and risk creating an environment in which the therapeutic relationship will be sacrificed to the enforcement of institutional policy. Clinicians and policymakers must understand the relevant legal frameworks to ensure that they are acting ethically and lawfully.