A ‘capacity’ assessment , must therefore, be a measure of last resort , as it removes a person’s autonomy in respect to a particular decision.
And, in any event, should only be undertaken, as and when a decision, ‘needs to be made’.
This is the law as provided by the Act which states
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success
If a person can with help, make a specific decision,he will not be incapable of making it.
And a capacity assessment and removal of that decision from him will be illegal.
so how does fit in with the latest court ruling 2019, of ‘fluctuating capacity’, being sufficient to remove all decisions from the incapacitated under MCA ?
iT IS ILLEGAL as not authorised by MCA, which states that capacity must be maximised at time of assessment
The Act also provides that prior to an assessment everything practicable must be done to enable a person to make the decision himself.
This requires, that the person proposing to assess, knows as much about the assessee as possible, to know how a person’s capacity can be maximised.
So basic capacity facilitators, such as the assessee’s ease, a familiar environment, no illness, or distress ,should be ensured and the assessor should not be a stranger.
And, the decision if possible, be made jointly with the suspected incapable, before the dynamic is changed, by a formal capacity assessment, which by its nature removes the incapable from the decision making process.
The Act shows the importance of protecting a person’s autonomy as it is made the first overarching principle of the Act;
‘A person must be assumed to have capacity unless it is established that he lacks capacity’
In addition, the MCA Code of Practice states in para 4.4 provides,
‘An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general ‘
Yet everyone now breaches this law by declaring people ‘incapable’.
So the first thing to be established is what decision,
Does it appear a person has lost the capacity to make?
And what is the evidence of this?
If a person has all his life, decided, what to eat, where to live, and who to see.
And is still doing this, then, he is not having difficulty making these decisions.
So why then, need his capacity be questioned, in respect to these decisions, as it is now, daily by Local Authorities, particularly, if he has a learning disability, or is autistic ?
The Act also states, there must be evidence of a difficulty making a decision, at the time the decision needs to be made ?
Again, Local Authorities, do not appear to need to explain, why they have decided a decision ‘needs be made’, at a particular time, other than to fund services at 18, and/or, due to exaggerated/non existent safeguarding concerns.
Any presumption of incapacity, before a test, is illegal, and, ipso facto excludes, a person from the decision making process, and prevents the steps legally needed to maximise capacity.
Without these the test is unfair, illegal..
And the empowering nature of the act subverted.
Its raison d’etra ,thwarted.
Merely because a particular decision is unwise, or other, than one, the assessor would have made, or makes care easier, does not make a person incapable of making it.
And the incapacity, must be directly linked/ connected to an ‘impairment of mind’.
If a person, has already been making, the same decisions all his life, and, there is no new impairment, for example he is autistic, or learning disabled from birth , then, why would he suddenly, be unable to make these decisions ?
And, how could they be due to an impairment, he had had when he was making them .
If, indeed, autism can be classed as such an ‘impairment’.
And, it must be remembered, that just because a person is unable, or unwilling, to make a decision,this does not mean, they are not capable of making it.
Hamlet was not incapable.
The reality is, that the mental health system is awash with people, who are assessed as ‘incapable’, for no other reason than they are labelled with one of the 375 mental disorders now available.
And most do not even engage with their assessment, and their assessment is generally an illegal blanket ‘incapable’ of any decision assessment for life.