The Mental Capacity Act 05 has achieved the very opposite to it’s purported aim, the protection of our most vulnerable.
Whereas before, an individual’s decisions, could only be made for them, if sectioned by medical staff under MHA, or if they had agreed under an Enduring Power of Attorney or Advance Directive, or rarely under the inherent jurisdiction of the High Court.
The MCA ‘capacity’ test allows the newly created Court of Protection to effectively make the decisions of anyone who might be affected by their physical, and/or mental condition, albeit temporary.
This makes it our most frightening, most abusable and draconian law to date.
And, as the Court of Protection, acts in secret, gagging its participants for life, ‘the quiet revolution’, promised by the Act is becoming the unseen surrender of our mentally vulnerable’s fundamental freedoms of abode, medication and care to the state.
The Act, states that it puts ‘the individual at the heart of the decision making process’, but then conspires to remove the individual’s means of making any decision.
So, one must wonder what its real purpose is.
Under the MCA it must be established, by those wishing to make decisions, on behalf of another that they lack ‘capacity’ as this is presumed by the Act.
In practice, the Act’s main use is to force the old, disabled and vulnerable to live in residential care or ‘independent’ of family living at 18 in ‘community living’ with for profit providers taking over and enforcing all care, and medication decisions.
A family member can apply for Deputyship at 18 in England, or Guardianship at 16 in Scotland, to make decisions on behalf of their child or parent.
If they do they risk a ‘capacity’ assessment and as the assessors are the state a finding of incapacity, and then the LA rather will then get the deputyship.
Such capacity orders, can also be free standing, or in conjunction with a Deprivation of Liberty Order.
The House of Lords Select Committee in March 2014, found,
’ the poor implementation of the Act by health professionals, is to some extent, symptomatic of a wider marginalisation of mental health issues’.
The College of Social Work gave evidence that the Act was,
‘ not fully understood by professionals, as an enabling piece of legislation, while families and carers painted a depressing picture of their exclusion from decision making’.
And, as there can be no effective challenge, a state Official Solicitor acts for those subject to it, the MCA can continue to be implemented illegally, with impunity.
The definition of capacity, and its assessment, is particularly misunderstood by professionals, with the Committee finding,
‘poor understanding of the presumption of capacity with evidence that blanket assumptions were being made on the basis of people’s conditions’.
When the Act provides, that even if a person is held to lack capacity, to make a ‘particular’ decision, they can be held to have sufficient capacity, to make a different type of decision.
If this affects their liberty the Supreme Court has held it illegal, without obtaining a Deprivation of Liberty Order.
This will have a big effect on the ability to physically examine and restrain, but, strangely does not affect the state’s right to force feed medication which allows perniciously such examination, and restraint.
The Act provides, that all practical steps, must have been taken, to help the person make the decision without success.
But, the House of Lords Select Committee Report found attempts to comply with this provision were shockingly ‘rare in practice’
They also found, Local Authorities, under used, Independent Mental Capacity Advocates, who were in any event, reluctant to challenge LAs due to funding conflicts and had no legal status under the MCA to do so.
As they have no right to take part in the ‘best interest’ decision making process.
All this is exacerbated, by the lack of any independent medical experts, being made available to a family, or patient, or non means tested legal aid, rendering the family and/or the alleged incapable, effectively powerless to ensure the Acts provisions are adhered to.
And family, being prevented from representing the wishes and welfare of their family member in the Court of Protection, and instead an Official Solicitor paid by the state is appointed.