National Mental Capacity Action Day- an Executive Subversion?


Social Care Institute for Excellence, a quango which faced the axe in 2010 has declared today, National Mental Capacity Act Action Day.

One wonders what that means, and what purpose it services.

Baroness Ilora Finlay, Chair of the National Mental Capacity Forum is inviting submissions

to highlight work that has raised awareness and improved implementation of the MCA’.

Submissions from ‘professionals’ only.

But what will be interpreted,  as improved implementation’.

Is this a veneer over the present illegal implementation of the MCA as highlighted in 2014  in the House of Lords Select Committee Report ?

Does this ‘improved implementation’  remedy the illegal implementation of he MCA and satisfy the Human Rights Act ?

Or is this ‘improved implementation’ merely mean that the boxes should be ticked to disguise the present illegal implementation ?

In view of the fact there hasn’t  been any change in the  way the MCA is being implemented  one can only assume the later.

So is the following the ‘improved implementation’ ?

The appointment of an IMCA, RRP, who can take no part in ‘the best interest’s’ decision, having merely a right to consultation and to ‘support’ and inform the  incapable,  usurping family members, despite an MCA Code of Practice providing their appointment should only be in absence of family members.

These IMCAs, RRPs and Official Solicitors are appointed and paid by the state so not independent  yet purport to give family and the ‘incapable’ rights.

The  Official Solicitor  costs huge sums of legal aid to ‘represent’ the ‘incapable’ but like the IMCA, RRP, is rarely able to communicate with him and mainly duplicates the work of the Local Authority/Health Trust lawyers in breach of his legal role of representation as the incapable’s Next Friend.

A capacity test performed by an expert, chosen, paid, and remitted by the state.

On a  Standard Form, which allows incapacity to be based illegally under the MCA on the condition, and presentation of a person.

And, a Court of Protection that uses standard general capacity  assessment orders, again illegal under the Act.

Whilst, the MCA  and Code sec 4 provide, that a capacity assessment should only be undertaken, of a specific decision, that is needed to be made  at a specific time without delay in a person’s best interests.

And, the expert assessing is not usually  the person involved with the person’s day to day care as required by the MCA Code of Practice.

An expert, who makes no attempt to maximise the person’s capacity, as required by s1

The capacity test removes a person’s legal competency purely because that person is ‘disabled’, and is therefore, illegal, under the United Nations Directive on the Rights of Persons with Disabilities.

Improved implementation’, which renders a person effectively insentient, when the purpose of the Act, was to empower that person.

An Act purportedly drafted to ensure that decisions were not being made on  behalf of the vulnerable, if they were capable of making them.

This, ‘Improved implementation’, instead removes all autonomy and freedom and allows every daily decision to be made by an all for profit ‘care provider’.

‘Improved Implementation’, that allows the Court of Protection,  themselves to declare incapacity which must be presumed until proven otherwise under s1 of the MCA.

And then apply this incapacity,  retrospectively, to invalidate  Powers of Attorneys the  incapables have signed as they want, their family to make decisions, about their future care and medication.

Courts, that ignore that the functional test presupposes, an expert can know the workings of a person’s mind, which is impossible per se, and, particularly, if autistic

And is, completely discriminatory, in respect to the autistic, and learning disabled, because of their communication difficulties, and the fact other people are not made subject to capacity assessments. .

Let us not allow the executive, to subvert an Act, which can effectively remove anyone’s autonomy for life,  on an inquisitorial basis, in secret, and is still being implemented illegally.

And, exists only in England and Wales.


    1. Yes, I agree, well reported as usual :>)
      We need more influential people to take note but I suppose the chances of that are pretty slim seeing as they are the problem!!


      1. Sorry forgot to thank you for your comment. It is very much appreciated.

        It is difficult. when we now have no rule of law, and the executive, appear to be doing what they like, but if its allowed to remove, literally, millions and increasing continually, illegally for profit, then where will it end ?

        What fascinates me, is the inability, of anyone, to reveal, and to face up to, the powerful systemic effectively corruption of public money and most importantly the disabled, and their families human rights..

        Our children, and our autonomy

        bEST Wishes,


  1. According to the House of Lords select committee this Act is the responsibility of the government, and only they can change it.


  2. Or is it the Act or the way the LA’s interpret it, they seem pretty good at re-interpreting the Care Act to suit their budgets. Fettering discretion all the way!!


    1. There is no need to fetter discretion as this is given expressly by the Carers Act to LAs.
      They are under a duty to assess carers but not to provide care.
      Which shows the real reason for Act, not to help carers but to remove the cared for from their care.
      An assessment that purports to be in a carers interest can and will be used as evidence that they cannot cope and their care is inadequate.
      Thank you for your comment.
      Best wishes,


  3. Governments, have drafted this MCA, and Carers Act, to fulfil their long term goal.

    Which is, to make the ‘disabled’, as many, as can be created by their ‘experts’, into captive pharma, health, and care cash cows for life.

    Using theirs and our public money under the Chronically Sick and Disabled Act, and allowing private companies eventually, all backed by venture capital, to claim this money, and all the disabled’s benefits.

    The MCA, as drafted is not fit for purpose, and offends the rule of law, and is in breach of HRA, and UN Directive.

    The Hof L would need the government to repeal it, but, a big but, this is not the main point .

    It the MCA is the law, and must be followed by the COP, and there exists clear evidence that it is not being followed, as I say in my post, and as shown to the HL Select Committee, the COP must be forced to follow it.

    How can a court of the land be allowed to ignore the law.

    This is wild west anarchy .

    Simple question then, who polices the courts ?

    I assume it is the Ministry of Justice, they should have pressure put on them by this HL Forum, as a result of the 2 year old report to actually follow the law, laid down in the MCA.

    The only other route, is through an appeal like Cheshire on DOLs to the Supreme Court, on Capacity particularly, as the practice of LA’s is to use general capacity assessments and courts order these.

    But even if an individual appeal on this illegality got to CA, it is unlikely permission would be given for a CA hearing, let alone from there to Supreme Court.

    HL, MOJ,cannot allow COP, to continue to act illegally, and if they all say,that no one, but parliament can do anything this is right about repealing act but not right about implementing it legally.

    What a precedent for democracy the courts allowed to interpret a statute, as the executive want, and not as the statute clearly states ? .

    And worse if they continue this ‘improved implementation’ it is a subversion.


  4. Finola and Jan There is no way out of this. The EuropeanCourt of human rights wont touch it. ( know someonewho tried). There is no barrister in the land who will fight for the “incapacitated”. I have blanket assessments on capacity time and time again accepted by the judge and the court of protection. Martin asked me to be his deputy for health and welfare, the judge threw the application out, and our appeal was thrown out too – no merit. One judge questioned the blanket assessment, then returned it to the original judge, who deemed it was illegal. Again God help us and our sons and daughters. And Martin has capacity!


    1. We are being held to ransom by being tied up in knots and fear.

      But, information spreading, and awareness of this is crucial, but difficult, as the media and parents are frightened, but we must keep going, as we have no alternative, and the situation will only get worse.

      The more they get away with, the more they will do.

      Our problem is, the rule of law, and the separation of powers, have both been removed by successive governments, which is constitutional anarchy, and in breach of their duty to the people and Parliament.

      What would Oliver Cromwell say ??


  5. Read Mr Justice Charles latest statement – as I understand it he is challenging the Ministry of Justice to provide money which is not available to the justice system to pay for P to challenge his dols in Court (which is P’s legal right). Again and again my mind boggles. I read what I have just written – !!!!!!!!!


    1. Thanks Shirley. Will find it

      But, who will be challenging the DOLs in court, and, will it be a proper independent challenge, or, will they just be singing the government’s, lock em up, drug em and shut them up, and make a fortune, hymn sheet?

      Likely, as with IMCA, OS, Cheshire DOLs requirements, to be another tick box to human rights ie s6 fair trial, and the UN convention on no removal of autonomy freedom.

      Sadly, ‘None will break ranks though nations trek from progress’


  6. In my world Martin himself, with all the practical help possible, challenges the dols. At the moment he has a paid RPR, who hasn,t spoken to him for weeks, months. With a paid RPR he cant have an IMCA – anyway they are few and far between, and not competent to deal with someone like Martin, who has very complex medical needs. I want Martin under S6 in Court personally, under the assumption that he has litigation capacity. HE CERTAINLY HAS MORE LITIGATION CAPACITY THAN THE os WHO WAS SUPPOSED TO BE HIS LITIGATION FRIEND, AS HE (whoops went onto caps lok by mistake) was declared to have presented the Court with a case on Martin’s behalf that was a “shambles”. In spite of this the case continued. It is all shit to say the least


  7. Very informative and helpful to me as I attempt, clearly against all the odds, to challenge best interests decisions made without any regard for consulting family carers. I cannot help but feel that I have entered a hornet’s nest.


    1. LAG Court of Protection Handbook by Keene is very definitive on law and procedure but expensive. Once they prove incapacity by an illegal blanket assessment as it is time and decision specific only when needed in a persons best interests, they more or less decide as they want what is in a person’s best interests although under s4 MCA they are supposed to take into consideration an incapacitated person’s wishes . You can try to demand a fact finding hearing on best interests but again they will have experts and you will need experts to counteract these. email me on finolamoss@gmail but I can only try to help and need to disclaim any liability for what happens……. as I nor it appears anyone has control over that except the courts……..


  8. That MCA needs reforming at ONCE. It is being misused to create Parent Alienation and the disappearance of incapcitated loved ones and the CoP needs to act in Best Interests of these vulnerable people. Family has No Say whatsoever. If we do question the collusion, unlawfulness and disproportions.. we are then unfairly Gagged and faces imprisonment. This cannot be democratic if we are operating under a constitution.


  9. Mr. Keene refuses to publish my comment on his biased, one-sided and misleading website because, I made very strong points and asked vital questions on what they publish which is all “FALSE”.


    1. To Dandymany

      You are right, a lot of money is spent on PR, and charities, and campaigners pretend families/disabled have rights, and any abuse, illegality, is just a lack of awareness, or individual incompetence.

      We need FOIA Notices, to find out the number of learning disabled/autistic living with their families at 18-25, and you would find there are very few.

      How can parents possibly survive the onslaught of courts, LA,GPs, HSCTs, and assessments of their care with no support, respite or day centres.

      And any excuse, even if parents manage to survive and be whiter than white, and are clearly doing their very best, is used to take your child by court order ,it is always in their ‘best interests’ to be removed, neither parents, or the disabled are given any choices for the rest of their lives.

      And abuse and death in state care is hidden. No one can complain about the service and no one escapes.

      And all illegal even under the MCA. Assessment Orders are blanket ones. Wishes of vulnerable ignored.

      But so many can feed into this gravy train- 3 sets of lawyers LA,OS,HSC,Psychiatrists, Psychologists, Social Workers, Occupational Therapists, Development Workers, Person Centred Planners, Health Practioners,Special Educational needs teachers/assistants, Nurses and all their trainers and all their many managers .

      All effectively doing nothing, as the LD/autistic/vulnerable’s fate is sealed at 5, as soon as he has a EHC/SEN statement, he is written off for an institutional drugged life, laudibly portrayed as independent living.

      A huge industry feeding in doing nothing, except assessing, enforcing through courts, encaging all to agency care with lots of boxes ticked like Lifeways/Cambian post.

      All now must be institutionalised for life, even if you are deemed a little slow or different, because they are are all cashcows.

      Thank you for your comments.


      1. Well said Finola, It is total disgrace to see that every Professional “fails” the vulnerable and his/her Best Interests and Family Human Rights and this wrongfully portrayed as ‘Proper Procedure’ in the Public Domain while we know it is too simplistic, wrong and disproportionate.

      2. Thanks, but not much comfort to be crying out permanently that we have no rights, no justice, and are at the mercy of a totalitarian state, that does as it likes as it is unaccountable.

        A state that can and does remove our most vulnerable loved ones, not fulfil its duty to care for them, abuses them, destroys our lives and theirs, and has created a huge industry out of doing so which it is increasing as we write and making billions………………………….

        And media, MPs, Charities, oversees, no one wants to know …..

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