Law on Capacity, ‘To Assess or not to assess, that is the question’.

Royal-Mail-Stamps-RSC-HamletThe Mental Capacity Act was, supposedly, passed to empower  the vulnerable, to make their own decisions.

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.


  1. How right you are. Martin has been assessed by the Court of Protection as lacking capacity in health welfare and decisions as to CONTACT WITH HIS MOTHER. Decisions he had made (with help) until 2007 when Mr Justice Charles put a blanket order on Martin. He even wrote a letter to Martin (aged 31 then) telling him his mother loved him but she wasn’t capable of ??????? In fact, later on he put an injunction on me which s tated basically that I WASNT CAPABLE OF LOOKING AFTER MARTIN i HAVE PERMISSION TO PUBLISH but who wants to hearr


    1. What an appallingly desperate situation you, and so many like you, and me are in.

      Not only illegal, but beyond inhumanity.

      As if your son is in anyway incapable, and who are they to judge.

      We now live in a totalitarian state, where the state can say it is so, because we say so.

      We are totally disempowered.

      Thank you for your comments, they are more than appreciated.

      I just wish yours and Martin’s voices could be heard, and respected, and not silenced, and ignored.


  2. Finola isn,t it unbelievable totally disempowered thats us, because we have a son or daughter who doesn,t fit their stereotype. Sod them all


    1. You missed, the real reason, this is all happening.

      The disabled/vulnerable, are huge cash cows.

      As, under the Chronically Sick and Disabled Act 1970, a selfless, and wonderful piece of legislation, fought for through a private members bill, has been subverted, to make huge private profit, out of the vulnerable, and from our taxes.

      This public money is meant to support the disabled, and their families.

      Up to £82,000 per annum on care alone, dependent on severity of the disability, add similar amounts for NHS medical and education now to 25.

      Issy’s NAS placement of 177,000 per annum, was funded by this, and NAS received the total amount, despite Issy being at home/ holiday, for a third of the year.

      Now under the MCA 05, families. and even the vulnerable are cut out.

      Families/parents by made up best interests/ abuse/ safeguarding issues, the disabled, by being deemed incapable, and the for profit care industry, then take all the money, they are statutorily entitled to, no one can complain, no one is accountable and it is our own money out of the public purse.

      How is that for a rip off ?


  3. £2400 a week for the last seven years, and none of it spent on Martin. I can trace where the profits go. Hundreds of thousands on Court cases that the judge says are a shambles. I know the rip off and I could expose it, except that anything I do they threaten to stop my contact with him.


    1. Also add on the amount paid for Martin’s independent living provision out of Chronically Sick and disabled Act,, dependent upon the severity of his disability, pharma kickbacks, and all his benefits ie housing, DLA etc.

      Contact and prison for contempt, are the constant Damocles Swords hung by the state, over loving relatives heads, and yet these family members, are the only accountability, surveyor of the care given, with no self preservation, and nothing to gain from their loved one.


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