Mental Capacity Act, Best Interests, Removal to State Care, and Human Rights.

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.



  1. Exactly Finola. I do not know if this was someone’s experience that you write of but, this is mine’s. It was Best Interests and he was assessed as lacking capacity but, the OS went into overdrive to ensure he does NOT return home because, the OS, LA and the biased Judge was fooled by a false-crying aunt. They then rejected the accurate Ind. Psychiatrist’s Findings and had an useless ISW and a NHS Psychologist write an assessment that is full of lies which stated that he has capacity and to wait for contact {he’ll decide} but, after 3 years, we GOT NO CONTACT. All this happened when we had no contact for many months. Assessment not done in a neutral venue. Fooled with his own flat by the SW. They hired and paid their own advocate and the dishonest aunt turned him against me/us.

    Once I took it back to CoP {as it backfired} for contact. I was told my son does NOT want to see me and case cruelly dismissed. The false whistleblower {whom I protected my son from for many years} got contact but, it was rightly STOPPED after her abusive and manipulative ways. In the meantime, I did no wrong but, was treated like a criminal {male gender was my demise} and the Inherent Jurisdiction invoked on me while being a dedicated Father.

    The inept Council continues to cruelly fabricate and prevent my son from seeing his family and him coming home {Law Comission’s proposals/findings DOLs} but,whilst, in their uncaring staff’s absence, he did come home once he met someone who “encouraged him” while, this is covered up while, this is someone that both the SW and OS lied and said he did NOT wish to see as well.

    Here we have the CoP {who is supposed to protect the vulnerable}, OS and LBWF exposing a vulnerable adult to “Abuse” for 3 years and then stopping it after it all backfired and they refuses to apologize.

    This beckons what Lady Hale said in P v Cheshire West, which is “Instead, it should be asked would that individual be allowed to leave if assisted to do so. If this would be facilitated then the individual is not deprived of their liberty”. The Home staff prevents him from going home and once his brother “encouraged him”, he glady went home after 4 years on NO Contact with his Family therefore, he is being covertly “Deprived of his Liberty and is incapacititious”. My son has No Family presently and this is inhumanely unacceptable.

    Why would he “happily” come home when “encouraged” by his sibling {who has been refused contact for 4 years} and allegedly refuse to come home when the Litigation Friend “allegedly ecouraged” him??????????????????????????

    These inhumane actions beckons why the Family Justice System needs reforming.

    Please see Re R [2016] EWCOP 33- 27/7/2016. Lush J said: Decision
    “It was held that R was being deprived of his liberty, that deprivation being directly imputable to the State. As it was appropriate to consult R’s family, the views of the court appointed deputies were accounted for by the State. Therefore it was the State who were ultimately determining what was in R’s best interests”.

    The Law Commission’s Findings are:

    What happens now?

    The Government will respond to the Law Commission’s proposals and decide whether to change the law as recommended or with amendments
    Substantive change is unlikely to happen in the next year or two
    In the meantime the current system remains in place
    However, those wishing to improve practice and prepare for likely changes would do well to bear in mind the importance of the following:
    Finding out and attributing due weight to P’s wishes and feelings in best interests decision-making
    Early consultation with family members and other relevant professionals
    Early consideration of care and residence options and any consequent deprivation of liberty they may entail
    Good documentation of best interests decisions

    If the present Legislation states Family Involvement, P’s Feelings and Best Wishes, Residence options and P’s involvement, why is it not happening and for how much longer will there be no Family Contact especially when his Family whom he lived with safely and happily for many years has done him No Wrong.?

    The MCA is always misused while, the role of the CQC seems not fit for it’s purpose. The new Proposals in my view, will deliver a fairer and just system where evreyone’s Rights and Best Interests will be met and respected.

    Will the Government act now after this sort of Narcisstic, unconstitutional and Human Rights breaches!!!!!!!!!!!!!!!!


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s