8 years ago, the Mental Capacity Act was, supposedly implemented to provide a ’ legal’ framework, to empower, and emancipate, the incapables’ ‘decision making’.
But has it?
No. See House of Lords Select Committee report.
The Local Authority strategy, to remove all suspected ‘incapables’ to private for profit state care, increased rapidly, after 2007.
Studies show, these removals were at first, often illegal, without reference to the Court of Protection. http://www.communitycare.co.uk/2012/10/30/where-social-workers-are-going-wrong-on-the-mental-capacity-act/
Whereas, now the Court rubber stamps removal.
As analysed in previous posts, it is functionally, very difficult, to legally comply with s1 of the Act, and, empower the vulnerable.
And this has not happened, as the Act is being used to remove all decisions from the vulnerable and their parents.
From this, we can only conclude, the real reason for the Act, was to enforce private profit institutional ‘care’ for life away from family and effectively any real community.
Such care, would have huge benefits, for the government, and LAs.
The LA, gets the old, disabled, and vulnerable off their books, eradicating the need for adult care.
Social workers, are used as enforcers, and then, replaced by care managers, who merely oversee private provision they have commissioned and would be liable for if inadequate.
LA budgets, do not then, have to be used on continuing home support.
Private profit care, benefits the government, as, public money, available, to the disabled and their families, under the Chronically Sick and Disabled Act 1970, can instead be used by venture capitalists, and businesses, to make profit, from social care, fuelling economic growth.
LA budget cuts, purporting to reduce the UK deficit, actually increase it, by payment of huge sums to private care providers .
The market for such care, is ever extended, now to those which learning disabilities, and behavioural problems, to maximise the potential consumer base.
Capacity/ability to make a decision is assessed routinely, and covertly.
The Care Act 2014, implemented last month, dilutes ‘capacity’, to ’substantial difficulty’ in being involved in decisions.
As assessments are routine, they are based on age, or label, and therefore MCA illegal, but who, or, how, could anyone complain?
This approach is highly discriminatory, and, marginalises, and stigmatises certain groups of people, by questioning their ‘decisions’, and, removing their right to make them.
The state can then enforce any care, and medication, they want.
For those living in residential care, rather than for emancipation, the MCA is being used, to justify tick- boxed regulation, and unchecked, perfunctory at best, standards of ‘care’, and, defend practioners.
The Supreme Court decision Cheshire West  UKSC 19, graphically illustrated, how functionally unworkable the MCA is, in relation to the many deprivation of liberties, that take place daily, in private care.
And caused a bureaucratic nightmare, which will do nothing to empower the vulnerable, but simply increases the box ticking of already overburdened, understaffed, underpaid care workers.
It has been translated operationally, to a Review of the Care Provision annually of the Deprivation of Liberty Order, with a Relevant Registered Person, who is generally not a family member but similar to an IMCA trained and appointed by a charity but paid for by the state and the Adult Services. Most Care Providers have computer software to deal with the matter as part of their ‘best interests’ check list.
As, with deprivation of liberties, any attempt to actually apply the Act, to the myriad of individual daily decisions, in residential care, as is required by the Act, would also be functionally impossible, particularly, in our, all for profit, zero hour care factories.
Usefully, the court practice is to remove a person’s capacity to make all future decisions, despite this being illegal under the MCA.
This assessment, to add weight to it will often be by a psychologist, pursuant to section 48 MCA.
But can be anyone.
And a s48 MCA application is granted to the LA on merely showing they suspect a person incapable.
The standard assessment order will decide, if a person has the capacity to litigate, make decisions as to where he lives, the care he receives, and the contact he has with members of his family
These are not decision specific, and, other than for LA funding, often, need not be made, so illegal under the MCA.
As mentioned in the post, ‘Standard Capacity Assessments Stephen Hawing would fail’, the standard LA assessment, is also apparently illegal.
And, does nothing to maximise capacity, other than tick a box on ease, comfort of circumstances, and, appears not to encourage joint decision making.
We have no figures of how many, if any, pass the capacity test.
If an assessor, were to find a person capable, he is proving his pay master LA, who suspected incapacity, and, applied to court, wrong.
The standard Record of Assessment, will also certify, that a person, is unlikely to regain capacity, condemning him, to never, being allowed to make a decision again.
Providing care providers, with a blanket incapacity assessment for all future decisions, again illegal.
Worse still, capacity, appears to be being equated with sentience.
As shown in Cheshire West judgement.
Where the court of appeal, and minority of the Supreme Court, held that a person can only be deprived of his liberty, if he has the capacity to understand and object to his situation, ie be aware of it.
Even Lady Hale eluded to ‘incapacity’, being equal to unawareness, by her words
’ An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty.
A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty’.
Care workers are encouraged to believe, these very vulnerable scared lonely people with communication issues are actually incapable of any awareness or feeling.
As a support worker, horrifyingly remarked to me ,
‘Would Issy know what was happening, if 5 strangers removed her from home ?’
The state is now allowed by the subversion of the MCA, to create the perfect commodities.