So let us explore, what appears, to be the Local Authorities practice, in relation to capacity assessments, since, the lucrative, ‘independent/community living’, away from family living industry was created.
Anyone, suspected of ‘incapacity’, all autistic, learning disabled, and, mentally disordered.
Including, potentially, anyone in need of ‘special’ education.
Funded under Education, Health, and Care statements.
Which unlike SEN, make the social services responsible for ‘protecting’ a child’s ‘welfare’.
So now, all ‘special needs’ children, are deemed in need of the protection.
Discriminatory of parents and children,in breach of the Equality Act, and,s 8 Human Rights Act.
Strengthening a disabled’s status, as a ‘child in need’, under the Children Act, see my article NLJ ‘The Disability Trap’.
EHCS, also allow care, health, and educations distinct roles to overlap.
And, their funding to be mixed and transparency even more obscured..
SEN/EHCS, do not apply to private schools.
So, the rich, can avoid, state intervention, and, are, allowed, their legal rights.
ECHS, do not fund schools after 16.
Instead, schools are replaced, by ad hoc education packages,consisting of skills for independent living, until 25..
These, combine support at home.
And, these ‘education’ providers, unknown a family, will be charged to notify social services, who approve them, of any ‘intervention issues’.
At 18, Adult Services fund everything.
As, the only LA policy now, is life in for profit, private residential care units.
All decisions are removed from the disabled, and their family by the MCA 05.
By showing ‘incapacity’ to make decisions.
So, the LA will insist, a capacity test is carried out, before, providing any adult services.
So social services, will suggest, your young adult child see a psychologist.
This ‘seeing’ includes a capacity test, but, you are unlikely to be made aware of this and there appears, no duty on the local authority to inform you.
It can also provide, evidence of emotional abuse/neglect, to cut you out of your child’s life.
If you ask for clarification of such assessments, and/or feel them unnecessary, the Local Authority, will apply to the Court of Protection, for an interim order under s 48 Mental Capacity Act 2005.
This application will be served, 24 hours before the court hearing.
Social services witness statements, in support, are not on oath, so not subject to the Perjury Act.
Matters to support this court intervention, can include any reported hearsay, from any source, care workers, GP, educators etc.
The first you may know of these ‘concerns’, will be 24 hours before the hearing.
No one is under a duty to discuss concerns with you first and under a tightly prescribed, managed service will be told not to..
Despite Social Workers and Mental Capacity Act Codes of Conduct, and, the Human Rights Act.
The Local Authority will ask the court for a list of expansive orders.
Including, any assessment and/or inspection, they wish.
If you do not agree, you may be warned your child could be taken that night.
So, you are given little choice.
This, is all an abuse of the MCA, and its five overarching principles, and its Code of Conduct.
The MCA provides, ‘capacity’, must be assessed specifically, in terms of capacity to make a particular decision, at the time it needs to be made.
The LA, will allege incapacity, in respect to the following decisions,
To litigate the proceedings
To make decisions about where they should live
To make decisions about the care they receive
To make decisions about the contact they receive from family members.
Clearly, only the first two, are in fact particular decisions, the others involve several particular decisions, should they have a bath, wash hair, brush teeth, depilate their arm pits etc.
Similarly, family members, are many decisions, to see mother, father, sister, brother, granny.
Remember the MCA provides an assessment should only take place,
‘At the time it (the decision) needs to be made’
But these decisions do not need to be made, at this, particular time.
Just because a person is 18, and now funded by adult services, a capacity test per se, is not allowed by MCA.
In relation, to the last three decisions, the disabled person, will have been making these decisions, all their life, whether to have a bath, sleep in thier home, see their granny.
How can they suddenly become incapable of making these decisions, and, the LA make them for them for them, under the MCA?
How can an assessment be justified, when these disabled, have already made these decisions in the past.
And by making them, shown their ‘capacity’ to make them, just because LA funding, requires it?
In relation, to the remaining decision, capacity to litigate, no one, unversed in law, would have such capacity, and, in any event, it is not be necessary, if the other capacities are present.
The MCA, was not drafted for the convenience of funding, only, independent living provision at 18, and enabling this by illegal removal from the family home.
The MCA was drafted, to protect a person, by allowing another person, to make a decision for them, in the least restrictive way, and, as they thought, that person, would have made it, in that person’s best interests, if thought, that person, had become in capable of making that particular decision, and, it needed, to be made.
The MCA, was not drafted, to declare people ‘incapable’, and, allow all their future decisions to be made for them, for profit.
Or was it ?