Stephen Hawking, and the difference between ‘Capacity’ and ‘Competence’

Physicist_Stephen_Hawking_in_Zero_Gravity_NASA

The Mental Capacity Act defines capacity as,

the ability to make a decision’.

Whilst competence is defined as

the ability to do something successfully or efficiently’.

Competence is a far more expansive creature.

It is the ability to execute a decision, after it has been made .

If we run the two together, at most, the definition of capacity, would be,

‘ the ability to make a decision, successfully’.

Not to be indecisive, like Hamlet

But indecisiveness is excluded from incapacity under the Act.

The Act, was not titled, The Mental ‘Competency’ Act.

Despite this  the MCA capacity test requires a person to understand the reasonably foreseeable consequences if he were to actually execute his decision once made.

This requires far more, than the an ‘ability to make a decision’ as  ‘capacity’ is defined by  the Act. As it requires the competence to perform the decision.

This is a person’s competency not his capacity .

Such a distinction may not affect the assessments of delirious patients, or, the alzheimer confused, to consent to medical treatment. .

But, even here, the capacity test allows draconian and dangerous removal of any patient’s autonomy.

And prevents any questioning, of medical diagnoses, and/or treatment.

Were Ashya King, an incapable adult, he, nor, his parents, could, have availed themselves of laser treatment, and, he,  might now, be severely disabled.

http://www.dailymail.co.uk/news/article-3148042/Cancer-patient-Ashya-King-six-parents-arrested-taking-abroad-pioneering-treatment-UK-given-clear.html

The  MCA Code of Practice worrying  provides a  denial of  medical or mental diagnosis to be possible evidence of   incapacity to consent to treatment.

Jack Nicholson, in One Flew Over The Cuckoo’s Nest, would, therefore, be deemed incapable, of consenting to his treatment, because of his denial of his non existent mental disorder.one-flew-over-the-cuckoos-nest-movie-poster

The MCA Code gives little guidance on assessing capacity when considering proactive decisions.

Stephen Hawking ’s capacity to decide to go into space, or out into the community, without his wheelchair..

Or, an autistic adult’s decision to go out into the community alone.

Are decisions both have the capacity to make but not the competency to perform.

If, they were to insist, they did have such capacity, this would be evidence, this would be evidence, they failed to appreciate, the consequences of their decisions, and, were therefore under the functional assessment,incapable.

Although Professor Hawing’s incapacity, could, not be caused by an’ impairment of the mind’, as unlike an autistic, he has a voice box.

As the Act, likes to have its cake, and eat it, it states, reckless decisions, per se, are not evidence of incapacity.

The MCA capacity test is not about capacity, but competence, safeguarding, and control.

And discriminates against the disabled by using, a disabled’s person’s inability to execute a decision, against him by conflating, incapacity with incompetence.

Parliament appears to have modelled, this capacity test, on the test used, to assess a child’s competency to give evidence.

As section 53(1) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) povides:

A person, is not competent to give evidence in criminal proceedings, if it appears to the court, that he is not a person, who is able to understand questions put to him as a witness and give answers to them which can be understood [section 53(3)].

Having lectured, this for twenty years, I can attest, it is a minefield of semantics.

Case law, arguing, it is satisfied, if a child can distinguish, between ‘fact and fantasy’ ie they know teletubies are not real.

Santa Claus?

And, a child must appreciate, the importance of telling the truth, and the consequences in court. as opposed to a social occasion.

Truth is truth?

Suffice it to say, the competence of a child, is a vague, subjective exercise, for a judge to assess, on questioning each particular child.

So one can but wonder, why, Parliament, chose, a similar blunt, subjective tool, to potentially remove, anyone’s autonomy for life in most cases.

Could it serve the real purpose of the MCA ?

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5 Comments

  1. Finola again how I agree with you. To put it simply if you give someone capacity, you give them responsibility. But they are not able to deal with the responsibility without our help. How could any Act be so counter productive. Once again I despair

    Reply

    1. Thank you Shirley.

      That’s it in a nutshell. Couldn’t have put it better.

      Capacity, as you say, has been interpreted, as responsibility, and, as a society, we need to help the disabled, be able to take responsibility for their decisions. Instead of removing them.

      The Act, has been cleverly drafted, to stitch up by stealth, but, it is per se illegal, under Art 12 UN Convention of rights of those with disabilities to equality, incorporated into Art 12 of the Convention on the Rights of persons with disabilities, an EU directive of 2006 which UK signed up to.

      This provides, that the disabled, must be treated equally, before the law, and, particularly that, their decisions cannot be removed, because of their disability, which is exactly, what MCA is doing, and designed to do,

      I believe there is a UN Convention/conference, as we speak, this month on the working of MCA.

      Wonder if we’ll get some media coverage ?

      Hope you, and Martin, are as well as you can be, under the circumstances.

      Reply

  2. We know what is happening, we have proof, but we seem to be powerless. Martin is now involved in a battle as to who pays his residential care home fees. There is an agreement (made in the CoP in 2008 that Surrey LA and Chiltern CCG should share 50/50. He has never been assessed for cont. care since then. Its all illegal, Martin has to pay £80 a week towards his care home fees of £2400 A WEEK. The DWP over ruled my EPA and Surrey is now his appointee. All illegal. He is detained under an illegal DoLs. I am simply TIRED. Read Mr Justice Charles latest on P being represented in court by the parents, he now approves. All we mothers should take the UK to the ECHR as a group claim. I myself am too tired to organize it

    Reply

  3. I AGREE.

    No wonder you are tired, what a life you, and Martin have had, because of them, and, how much money they have gained.

    Certainly could be defined as theft ie ‘obtaining property by deception’.

    No wonder Gove, will privatise courts, they are making millions, as are lawyers, for standard forms, pleas, instructions, orders, and rubber stamping.

    To say nothing, of all the assets they control.

    All, soon, will be one huge corporate cabal, with absolutely no accountability, that has been the third way plan now for 20 years nearly.

    They have sat, and worked out, that welfare is a goldmine with MCA and adoption and fostering.

    Incapability controls medical and all care. No consent needed, no complaints possible.

    There is no welfare support, just exploitation…..

    Rest, if you can, but, as I know, if your child’s happiness/life/safety is at stake.

    There is precious little rest.

    Reply

  4. Reblogged this on | truthaholics and commented:
    “Although Professor Hawing’s incapacity, could, not be caused by an’ impairment of the mind’, as unlike an autistic, he has a voice box.
    As the Act, likes to have its cake, and eat it, it states, reckless decisions, per se, are not evidence of incapacity.
    The capacity test, is not about capacity, but competence, safeguarding, and control.
    And, ferociously discriminates against the disabled by using, a disabled’s person’s inability to execute a decision, against him by conflating, incapacity with incompetence.
    Parliament, appears to have modelled, this capacity test, on the test used, to assess a child’s competency to give evidence.
    As section 53(1) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) povides:
    A person, is not competent to give evidence in criminal proceedings, if it appears to the court, that he is not a person, who is able to understand questions put to him as a witness and give answers to them which can be understood [section 53(3)].
    Having lectured, this for twenty years, I can attest, it is a minefield of semantics.
    Case law, arguing, it is satisfied, if a child can distinguish, between ‘fact and fantasy’ ie they know teletubies are not real.
    Santa Claus?
    And, a child must appreciate, the importance of telling the truth, and the consequences in court. as opposed to a social occasion.
    Truth is truth?
    Suffice it to say, the competence of a child, is a vague, subjective exercise, for a judge to assess, on questioning each particular child.
    So one can but wonder, why, Parliament, chose, a similar blunt, subjective tool, to potentially remove, anyone’s autonomy for life in most cases.
    Could it serve the real purpose of the MCA ?”

    Reply

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