The Mental Capacity Test- The Fool of Law ?

The Rule of Law is the basis of our freedom and democracy.

It is our protection from state exploitation and tyranny.

It provides our laws must be certain.

Our main, and most authoritative source of law, is an Act of Parliament.

Parliament, must therefore ensure Acts are certain.

That is sufficiently well drafted to be implemented, without the need for too much discretion, and/or subjectivity, on behalf of the executive, and/or, the judiciary.

If they are not, the state will be given too much unauthorised ( not sanctioned by Parliament), unpredictable power over an individual.

An Act, historically, commenced with a paragraph describing its ‘sprit and intendment’, known as a Preamble.

Its function  was to explain an Act’s purpose, it assisted an Act’s interpretation and application.

Preambles, are now rare.

Yet, The Mental Capacity Act commences with 5 overarching principles, drafted not as a preamble but a section 1.

And this section is the main substance of the Act but written in the style of a preamble.

The Act, then dangerously and in breach of the rule of law, gives no  further specific provisions enacting these s1 overall purposes..

Instead, placing high reliance, on a lengthy  Code of Practice.

This is poor drafting, as it leaves the Act vague and therefore, ripe for, executive bureaucratic discretion.

From a general s.1, which  supposedly embeds autonomy, and makes a capacity assessment a last resort.

The Act,  says no more on these crucial matters, other than in the Code of Conduct.

Leaving the purpose of the Act, and how it should be implemented to a Code of Conduct.

The  effect of this  is, there no law to  implement the purposes Act in s1.

Instead, s 2 and 3, move straight to define, what a person has to prove, to avoid having their ‘capacity’ removed.

By anyone’s standards, a strange way, to draft an Act promoting autonomy.

Section 2, is stage one of the capacity assessment.

‘Capacity’ is rather unhelpfully defined, in the Code of Conduct,

as, ‘the ability to make a decision’.

Stage one of the capacity test, consists of a finding, that a person has,

an impairment of, or disturbance in, the functioning of the mind, or brain’.

And, gives a non-exhaustive, expansive list of examples. mental illness, learning disabled, etc.

But avoids any  definitions/explanations, of these listed classes.

Or, the blood sugar, intoxication levels needed, to impair, or disturb, or indeed, any definition of impairment, or disturbance, or the degree needed to satisfy the test.

This level of vagueness, expansiveness, and inherent subjectivity, can only be deliberate..

And, one wonders how anyone, could manage, not to fail  stage one.

Is there any evidence, that anyone has ever passed it?

This means, section 3, stage two, will almost always, be automatically moved on to.

This undefined impairment/disturbance, must be sufficient, to cause the person to be unable to make a particular decision, at the relevant time, when it is needed.

A person, is unable to make a decision, and therefore, ‘incapable’ , if he fails any one of the following;

Firstly, if found that he,

cannot understand information given’.

‘Information given’, is ‘defined’ in the Code of Practice,

‘as information relating to the nature of the decision’.

This leaves the assessor and us, to speculate, as to what this ‘information’ might be, and how, it is to be imparted, to the person, who is already suspected of being mentally ‘incapable’.

Consider, for example, the information, that needs to be given to  the suspected ‘incapable’, to make the usual decisions, required in a standard court capacity order;

Which consists of, whether they want to represent themselves, in the Court of Protection, where they want to reside, who they want to see, and, whether, they can decide all their own personal welfare decisions.

This would involve, the need to impart, a potentially limitless amount of information, to the person being assessed capable of making them.

And, not only does the assessor, need to impart all this information,

S3 (2)   also requires him, to present this information,

in the best way to maximise a person’s capacity’.

So, all in all this surely, must warrant a vague, impossible, Herculean feat.

But, it gets even worse, the poor assessor, is then given, the  even more difficult/impossible task, of judging if, a person has  understood all this information.

How can an assessor possibly to this ?

How can he possibly  judge what another person has understood ?

Particularly, if that person has communication difficulties.

If, a person says yes, I understand, what it means to act for myself in the court of protection.

Unlikely per se, even if, he had already experienced it, and assuming, he had been provided with all the information, relating to the decision, whatever that might be.

Yes, I know all that is involved in looking after my personal welfare, and, have considered, all the information relating to all these decisions, another imponderable.

Will this be sufficient, for an assessor, to be satisfied, a person has indeed, understood, the infinite nuances of such information?

Remember, the assessor, is not allowed by the Act, to make judgements, solely on a person’s behaviour or presentation.

If a person, passes that part of  the test.

How, can only be imagined.

The assessor, must then decide, that the person is able, to retain, all this mass of information,

long enough to be able to make a decision’.

The Act, does not  stipulate for how long, nor why, this  is specifically made necessary.

As presumably, a person normally indicates his decision, as soon, as he has understood the information, in answer to the question, that requires that decision.

And presumably, the ability to understand this question, by necessity, would need the retention of this information for the required time.

But not only, is the assessor charged with assessing the length of ‘memory’ required.

The assessor has to, then go on to decide, if a person’s   ability,

to use and weigh up the information in making the decision’, is sufficient.

Wow.

This will involve the assessor, having the skills, and information, even experts, in the plethora of areas, involved in the decisions, might not possess.

Inter alia, statistics on success of litigants in person, caring for yourself, over being cared for by the state, the psychological effects of seeing certain people, or not, the advantages of a particular residence now, and, in the future.

And, how can an assessor, possibly judge what should be ‘evaluated’, in such decisions.

The assessor himself is unlikely to be able to. Who would?

And, more crucially, whether  the  person with communication difficulties, has ‘evaluated’ them properly?

On what objective criteria, will an assessor’s judgement be based, and, what is to be evaluated?

Such an evaluation, would require an objective evaluation of a sea of information, and unknown future imponderables, and expert knowledge.

But, even more crucially, such evaluation, relies on, and requires, that the person being assessed, has extremely good communication skills, to be able to impart to the assessor, how he evaluated his decision.

How could a person, suspected of mental incapacity, with normally very poor, if any, communication skills, be expected, to explain his evaluation of all this required information?

This must therefore, on analysis, be found to be a farcical, unworkable assessment.

And, grossly unfair on the assessee.

Particularly as in law he is only forced to be assessed because of his disability.

Yet, such assessments, have already removed the autonomy of over a million, with a potential for millions more, for life.

Assessments, that do not even satisfy superficial scrutiny, are removing, our citizens rights to make their own decisions.

Worse still, the Care Act 2014, now weakens the definition of ‘capacity’, to having ‘substantial difficulty’ being involved in specific decisions.

And, this ‘substantial difficulty’ test is the same as the ‘capacity test’ definition in the MCA.

So anyone can assess, and the ‘assessment’, is effectively totally subjective/unworkable.

Terrifying confirmation, that the state is determined, to remove the autonomy of anyone they want to.

Two Acts, provide and dilute, the ultimate weapon of control, and, create a  means to use anyone, as a commodity for private profit.

Has anyone ever passed such a capacity/ ‘substantial difficulty’ test?

It-Is-Not-Torture-Small

No one survives a  MCA capacity test

 

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6 Comments

  1. Kate Beltram?iframe=true&theme_preview=true&calypso_token=98e3d5e0-17a2-4cfd-ac90-7d722f19387c May 19, 2015 at 6:34 pm

    The vagueness of the law on MCA works both ways. If you don’t agree with a decision, this vagueness helps. Blame it on blood sugar levels, the moon, whatever you need to. Remember that what works for them works for us. Preamble is subjective. assessments can be appealed. Always appeal, complain, and do whatever it takes to bring the truth to the fore.

    Don’t be a victim, whining about the system. Challenge the system, head on and as publicly as possible. Don’t say “This is what they did to my child”, say, “This is what they tried to do to my child”. It’s never over, or definite. Make them work for their easy decisions about our children.

    It’s not about money. Sorry, Finola, you’re wrong. It’s about power. And we will take it back for our children. We will use their laws and vagueness and ambiguity to give our children the best life has to offer and help them reach their full potential.

    Don’t whine and complain. Manipulate the system, manipulate their laws. Lie if you have to. Don’t just uncover terrible injustices, offer a way to combat them. Otherwise, you’re just as much a victim as your child.

    Reply

    1. The problem is that there is no way a parent/relative can fight the system.

      As can be seen from my blog posts, and Shirley’s comments.

      Complaints about LA services and social workers, are halted by court proceedings.

      How do you complain about the courts ?

      As, ‘independent’ 24/7 supervised living’, is now ,effectively, the only, future for the mentally disordered/ learning disabled, it is, very much about making money.

      3,000 + on average per week, can be claimed by independent providers, and, by such provision, social services can get all the disabled off their books, into secret, unaccountable care, and, parents are cut out, or controlled..

      Their child is then used, as a controlled commodity for life , no one is interested in their potential,, as they are a commodity in a business.

      Businesses and charities put profit (charities just recycle them),and sustainability before anything.

      74% of autistics are on antipsychotic drugs, to make their care more manageable, 3 learning disabled are dying per day needlessly, through lack of proper care.

      Families, and the disabled, are given no choice.

      The MCA is used to police the system.

      The disabled are forced to live in state care, their autonomy removed, receiving services, which are effectively, unseen, and, unaccountable.

      Courts accept, independent living is in their ‘best interests’, if the LA say it is, and no one checks, to see if it is, or, what happens to those ordered to live in it.

      The court of protection, experts, and the lawyers, who serve it, also make huge sums, out of the Mental Capacity Act..

      If you can work out how the Mental Capacity Act, can work in favour of these disabled, and/or their families, please let me know.

      Reply

  2. Shirley Buckley?iframe=true&theme_preview=true&calypso_token=98e3d5e0-17a2-4cfd-ac90-7d722f19387c May 20, 2015 at 5:55 am

    Finola way way back Martin had an assessment by a properly trained expert in capacity assessment. It was absolutely spot on, said why Martin had capacity etc. and that not to allow him to choose where he lived would be a travesty. The LA stated in writing they did not accept it had other knowledge. As to the above I have fought tooth and nail since 1999 for Martin’s rights, and been in the Court of Protection since 2006. The result a penal notice if I “influenced” Martin, a valid EPA over ruled by the LA, Martin 7 years under an illegal dols and no chance to appeal, continual attacks on my rights of contact with him, a threat that the police will be involved as I have tried to get into Martin’s bank account etc. Finola is stating the FACTS from a legal point of view. I have fought them from a legal point of view and lost. I would never lie and bring myself and Martin down to their level. £2,000,000 at least has disappeared into an investment company,s funds. You tell me how to combat these terrible injustices.

    Reply

    1. There must be someway all this can be investigated and stopped, otherwise it can only worsen.

      I know you must already have tried everything, and are beyond weary, and you have persisted for Martin, and justice and truth, for so long, but is there not an MP anywhere, or your own Parliament representative, who could raise this matter, which appears practice, in Parliament, as the courts in someway must be accountable.

      Gove, as per Grayling, is likely to privatise them, as think of the profit, of a sealed system, about which, no one can complain, but without law, what have we– a jungle, in fact worse.

      Thank you for confirming all this, and therefore probably why the law is as it is.

      I am very grateful for your comment, and hope one day all this scandal and horror will be revealed, and remedied.

      Reply

  3. Shirley Buckley?iframe=true&theme_preview=true&calypso_token=98e3d5e0-17a2-4cfd-ac90-7d722f19387c May 20, 2015 at 9:34 am

    The only person with any power who has heard what I am saying is Lord Hardie chairman of the select committee, and we just come back to “the Act is not fit for purpose”. The Court of Protection is answerable to no-one, if there isn’t a law they always call on the inherendt jurisdiction and that is pure power) I should be able to take this to the ECHR like Bournewood, but I can only do that if I represent Martin as a litigant in person, and at the moment I cant even download the application forms.

    Reply

    1. Quite, that is my point, the system is not only NOT justice, the laws in breach of the rule of law, but it is also sealed from any appeal, and/or complaint..

      All parents/relatives will be automatically excluded from being the incapacitated’s next friend/ official solicitor, on the pretext, of made up conflicts of interests, as they are always, deliberately labelled, the neglectful, unfit carer abuser, so as you have so kindly taken the trouble to illustrate, the system is sealed.

      And this means, the only people, who can protect all those encaged by the state, are excluded, even from seeing what the state is doing to them, and they are the only people, not motivated by profit.

      There appears no accountability for state services, even when the incapacitated die, as Sara is finding out.
      Yet a small fortune, some 4,000 per week can be charged for their care, with pharma medication, pharma trials, education, state benefits, and huge sums under the Chronically Sick and Disabled Act.

      Other than an MP taking it on, a petition with the requisite huge numbers- difficult with petitioning sites becoming profit making, and frightened people, unwilling to give their name, or a class action in Europe, as the Act is illegal under the EU directive we signed, again, likely to be doomed, in view of EU’S attitude to domestic policy, and our present attitude to EU.

      But what an appalling indictment on our laws, social conscience, justice, and this, and the two former governments.

      Reply

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