Once, it has been assessed, that a person lacks ‘capacity’ to make a decision.
The MCA provides, any decision on their behalf, must be, as thought, the incapacited would have made it. s4.
But, with the huge caveat, of paternalism-
Only if, it is thought to be, in that persons, ‘best interests’.
This further removes, a deemed ‘incapable’s’ autonomy
Already illegal under Art 17 UN Directive as ‘substitute decision making’.
This is why, charities for the elderly, advocate, joint decision making.
Charities, for the mentally disabled/autistic do not.
Nor, do the courts.
Instead, what the incapacitated decision would have been, is overridden, to whatever the state believe is in his ‘best interests’.
The House of Lords select committee report revealed,
‘families and carers painted a depressing picture of their exclusion from decision making’,
let alone, the incapable’s exclusion.
At best, families, are consulted, but have no right, to be part of the decision making process.
Nor do Independent Mental Capacity Advocates.
A person’s ‘best interests’, is left to a social services /NHS best interests assessor.
With no independent voice.
Or, consideration of, the conflict of interests, arising from the profit from state private provision and, the LA policy of only funding such care, and, the incapacitated person’s wishes, and interest.
The ‘best interests’ assessors, if disputed,abrogates ultimate responsibility, to the courts.
But, the court of protection work load, since implementation of MCA, has increased by 60%, whilst staff decreased by 30 %.
There is no non means tested legal aid for fanilies,
And, as the HL report, the legal profession, nor apparently, anyone, fully understands the Act.
But, is it appears to be being deliberately misinterpreted, as the drafters knew, it would have to be,
as the Act, as drafted is unworkable, as shown by the recent Cheshire Supreme Court judgement on Deprivation of Liberty.
An official solicitor, will be appointed to represent, the ‘Incapacitated’.
As the incapable’s family’s interests, will usually be deemed to conflict with the incapable, as their neglect/abuse/incapacity will usually be alleged .
This Official Solicitor, is anything, but independent, as paid by the state.
And, receives information only, from professional agencies, instructed by the Local Authority .
As, his client is incapable of instructing him, he cannot take his instructions.
Therefore, an OS, cannot fulfil his duty to his client, and, the court, to obtain a fair hearing.
Illegal blanket assessments, and capacity tests, are used.
And are systemically, impossible, to challenge.
The act, even exempts an expert from liability, if he reasonably believes, a person is incapable.
But not, if he uses, an illegal test, or does not comply with the MCA, his duty to the incapacitated, or the court.
Additionally, the Act requires that in making the decision,
‘ regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action’.
As, the usual decision to be made, is removal from home, to a state private institution.
And, as LAs have now, on the excuse of cost cutting, removed effective support at home.
It will not be difficult to show, that such care and support, cannot be ‘effectively achieved’, without removal.
So, the state’s withdrawal of support at home, and, within the community, aids the ‘best interests’ decision, they seek.
State private profit providers, can then claim, the large amounts of money, the disabled, and their families, are entitled to, under the Chronically Sick and Disabled Act 1970.
And worse, are being allowed to do so, for basic, unaccountable services.
And the incapable serve user, cannot complain.
The LA adult social services care managers oversee them.
But, there is a conflict of interests, between this role, and their commissioning role.
As if the service is inadequate, the LA will be liable.
Adult Services Managers, have now replaced Adult Social Workers, except, for the enforcement process into state care.
As with all legislation, the MCA, must be interpreted, to give effect to the incapacitated human rights, of privacy, and a family life.
State removal, away from family, and 24 hour supervision, is the ultimate interference with theirs, and their family’s human right under s 8.
And, an incapacitated person, via a next friend, could apply for a prohibitory injunction under s8 Human Rights Act, to prevent his removal.
But, how would the incapacitated, or, his family know this.
And, be able to enforce it ?
The Official Solicitor, paid by the state, will be in favour of removal.
The family member, has very limited legal aid, and, the risk of the LAs costs.
And, will have to find a lawyer, willing to take on the state, and, be able to pay him.