The Mental Capacity Act in practice -emancipated or insentient?

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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   [2014] 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.

And,  the perfect   victims.insentient

 

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6 Comments

  1. Here I am again Finola. How right you are, but how hopeless it is. The Act is so illegal it can hardly be called illegal, as it has no connection with any sort of law. All it is, as you say,is power to the LA. Over £2000,000 has been spent on residential care fees, and not a penny on Martin. This is just one example of the power they use – Martin has an activity sheet each week. On it is written “Mom can not call (telephone) on Wednesday, Thursday and Friday” The LA has stated that if I do call and upset Martin they will go to the Court of Protection to limit my contact with him. I did point out that to limit contact I have to have abused or neglected him, but hey ho who cares. Martin has been legally deprived of his liberty since November 2007, but again hey ho who cares. The RPR (paid) has no intention of appealing it, in fact I think he doesn’t know what the CoP is. I despair

    Reply

    1. Its really nice to hear from you again, but sad, that we keep having to discuss, such beyond dire corruption, and misery.

      It is all quite unbelievable .

      So many, if not all parents of disabled/ disordered/ simply labelled by the state children, cut off from their families.

      So many, lost destroyed mothers and fathers, and their adult children,

      We watch ‘Long Lost Families’ on TV, its starts again next week, and can see the irrefutable evidence, that family bonds and love, are the most important thing to every member of it, particularly, mother/father and child .

      Yet, once a person is labelled, they become a child of the state, for profit.

      A mere commodity, to be processed for the maximum profit.

      Love, knowing, genetic familiarities, and life long closeness, is judged by a court, who has not met the person, and, severed, and that person, then has all their decisions, made on paper by strangers, who are paid, and itinerant.

      And the only check is a state body CQC, on paper, so huge conflict of interests,

      And even when they are killed by the state, nothing can be done.

      The only reason NHS England investigated into the 900 autistics last year, incarcerated, illegally in private NHS Hospitals, was because they appeared on an audit sheet, and were flagged up, because the system, had made them so anonymous, the private hospital, did not know, which LA should be billed for their £4,500 per week ‘care’, the fact it was interminable, and therefore illegal was not considered.

      Parents have no where to turn for help to stop, this beyond scandal travesty .

      And neither do all the, now over a million adults, who live as cash cows, in unseen jails, with every decision made for them for profit.

      If you ever want to please email me, at finolamoss@gmail.com and I can give you my telephone nos.

      Best Wishes.
      Finola

      Reply

  2. I do see your points, but the other thing to consider is, that children (or even adults) who are *not* diagnosed with a condition or disability, can also be (and frequently are) falsely accused by the state of showing signs of abuse because there is no stated medical reason for their traits. For instance, children with autism or ADHD are being wrongfully stated to have attachment disorder or signs of emotional or other abuse (in autism traits such as lack of eye contact, withdrawn appearance, difficulty talking to professionals is seen as a sign of neglect or abuse). Parents are being sent on parenting courses instead of having the children assessed for neurodevelopmental disability and children are being stolen from parents because of misrepresentation and misunderstanding of their traits. This also applies when the parent is autistic and doesn’t communicate well with professionals, they are seen as an unfit parent with something to hide. So whilst I agree that the systems that exist, both child protection and deprivation of liberty/courts of protection and the industries surrounding them are appalling and need an overhaul urgently, I disagree that the diagnosis itself is the problem. Someone can be deemed to have too low and IQ to have capacity without any diagnosis of a disorder and still suffer these problems.

    Reply

    1. Yes, all are caught by the MCA’s extensive, and non exhaustive definition of ‘impairment of the mind’.

      IQ tests are deliberately ignored, or in any event flawed, because of the autistics communication problems, see my post, Abuse of autistic for profit.

      All this drafting of MCA legislation, is deliberate, to catch, as many, for the COP and independent living industry, as possible.

      What the MCA and COP do, and as all experts are paid by the LA, and act in a cabal, they allow anyone, who they target, to be deemed illegally incapable of making all decisions for his life, and effectively insentient, so the state can do what it likes with them.

      This is all illegal under the UN Convention on Disabled Rights, which UK has signed, which does not allow decisions to be removed purely on basis of disability.

      This is a 15 year in the making government initiative, to pen, as many mentally disordered etc as they choose for profit.

      The other points you make about parents are true.

      AS any thing possible is used against parents.

      That is why the Carers Act puts a duty on LA to do carers assessments, see my post Care to Ensnare, so that the maximum mental disorders ie the have over 300 now, can be alleged against them, for removal and permanent separation from their children.

      Exactly the same means of obtaining evidence, is used in the care courts for adoption and fostering, again a huge multibillion pound industry.

      All these experts are paid for by state and are hired guns, and the assessments done on a selective perspective, subjective basis, on the symptoms of those stressed and terrified of losing their children and caring for them PARENTS

      How do you stop such a built up, all powerful structure, which has now taken over disability support with everyone including all charities feeding into it for money ?

      Already Lamb is training an army of mental health social workers to enforce the MCA to label, and encage under the MCA, via the COP for profit.

      Canute and tides ?

      Reply

    2. Yes. But two wrongs don’t make a right.

      Anything now appears by social workers to be capable of being a sign of neglect, or abuse, in both adults and children.

      And worse still, such conclusions, and the evidence for them, goes unchallenged, in our present care courts, and court of protection.

      We have to ask why.

      The answer, the profit to be made from care, or enforced supported living, if adult.

      It would appear to be a loose loose situation, as if, as you say, a person is labelled autistic, then eventually, particularly at 18, when all decisions might be removed from him under the MCA by THE COP, and encaged for life.

      The fact that everything is not, done for the good of the autistic/different, and/ or their family, but to remove their control, and use them as commodities, is why everyone is being diagnosed, as such a diagnosis, in reality, has very little to offer, either parents, or the diagnosed.

      The situation is beyond appalling, and no one appears to be doing anything about it, because the autistic do not have any voice let alone power, and our government appears to have no morality, scruple, and a ruthless state.

      It is a desperate situation. Which can only get worse and is already extended to the learning disabled and in fact anyone targeted

      Reply

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