Gold Rush Part 3. Lawyers, first hearing, allegations need not be proved.

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Court of Protection solicitors usually pay for Charity endorsement and Law Society Mental Capacity Accreditation.

They increasingly work for large Alternative Business Structures which market themselves as old style solicitors but are commercially aware corporations with scant competition and no personal liability .

Fees and services are therefore fairly standardised.

These lawyers are also contracted by the government to act as Official Solicitors.

To attend the hearing to remove your loved one in less than 24 hours you will be billed £500 over the phone and informed that this is half the legal aid rate.

On arrival at court you meet your lawyer who liaises with the LA solicitor and tells you that if you agree their Orders, you can avoid the police arriving to remove .

So faced with no option you agree to anything.

If you do not, the judge will usually order what the LA want anyway.

What you are unlikely to be told is that removal of your loved is unlikely at this point, as ‘incapacity‘ has not been assessed, an Official Solicitor not yet appointed and Deprivation of Liberty Safeguards not yet in place.

Your protestation that  allegations of parental incapacity, abuse and neglect are out of context, unfair and/ or lies is ignored.

It would appear such allegations do not need to be proved.

In contrast to care proceedings where s31(2) Childrens Act provides it must be proved that a child is suffering or likely to suffer significant harm on the balance of probabilities, there is no such requirement for an adult under the MCA and courts have stated Parliament did not intend there to be one.

Rarely, if ever, will the court hold a specific fact finding hearing on allegations made by social services .

Such a failure of natural justice/ due process can only aid false, unfair accusations against families now that only residential care is funded.

A Local Authority v PB and P, one of the few judgments on fact finding, saw the removal of an ‘incapacitated’ adult from his mother on the basis of her alleged inadequate care.

Charles J noting ‘there are a number of ways in which the best interests issues can be put to the court. Some of them may well involve proceeding on the basis that historical disputes of fact can be left as that and as matters of disagreement .(As they were in this case.) In other cases, that would not be so’.

But no reported cases indicate what these ‘other cases’ might be.

So we haven’t a clue when/if fact finding will be deemed necessary as a separate exercise or even as part of a ‘best interests’ checklist .

And there is no judicial, or practice direction, or indeed any guidance.

So at best, fact finding is ad hoc and rare in today’s clogged up courts where judges are under a statutory duty to have regard to the costs of proceedings.

The allegations upon which hundreds of thousands of families have been torn apart for life, assets seized and liberty lost have never been proved.

Attempts at forcing proof of social services allegations are case management issues and any appeal against refusal is limited to a local High Court judge, and  LA and OS legal costs may be payable.

So for now your loved one is still at home, but you have to allow social workers into your house at least once a week, a s49 GP physical assessment, capacity, psychological and financial assessments and NHS Continuing Care Assessments and Carers Assessments.

The evidence gathering continues and the next hearing date is set.

 

 

Gold Rush Part 2. Access to your loved one, police powers and s48 Orders.

untitled sheild of law

A standard paragraph in the social worker’s statement will strike terror into a family’s heart.

‘ It is the view of the Local Authority that contact with X’s family members should be promoted and it recommends that initially this should take the form of weekly visits of an hour and a half supervised by a worker independent of both the Local Authority and the care home. The worker will report back to the Local Authority their observations during contact and this will help to inform their view on X’s future placement and contact with his family.’

So the future of a parent/spouse/child to be even viewed by their loved one for life is in the hands of a single care worker.

No family concern, spy cameras, possible complaint; no oversight of ‘care ‘other than by  the LA/HSCT’s commissioning body’s Adult Services Manager.

And for these services, including medication and restraint, the care provider is exempted from liability under s5 of the MCA which provides;

(1)If a person (“D”) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if—

(a)before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the the act

(i)that P lacks capacity in relation to the matter, and

(ii)that it will be in P’s best interests for the act to be done.

(2)D does not incur any liability in relation to the act that he would not have incurred if P
(a)had had capacity to consent in relation to the matter, and

(b)had consented to D’s doing the act.

So your ‘incapable’ loved one in law is deemed to consent to any action deemed in his ‘best interests’ once he is only ‘reasonably’ believed incapable of making the decision by a commercially aware, for maximum profit ‘care’ service .

Yet this is subject to taking all practical steps to see if the person is able to make the decision and the least restriction action, and with regard to that persons known wishes.

How will all this be checked in the world of itinerant. maximum profit care that has a court declaration that that person is incapable of making decisions about their care ?

The standard Social worker’s statement also states;

‘Should more than light restraint be necessary to remove X from the family home and take him to the placement the police are authorised to provide appropriate assistance including forced restraint and any authorised person operating under the terms of this order shall be acting in compliance with section 6 of the Mental Capacity Act.’

But will the police be ‘acting in compliance with section 6 of the Mental Capacity Act.’ ?

No, only if the restraint and removal is needed to mitigate an imminent, life-threatening risk.

That will be rare and involve removal to a hospital not care home.

The ‘Sessey case ‘ held the Metropolitan Police were acting illegally when they assisted a removal on private premises just because the person was suffering from mental health problems.

The LA are already armed with a Court of Protection s48 Order from the High Court of Protection in London granted without the family’s knowledge, let alone  right of reply.

This Order, despite its legal interim status authorises the County Court to make any orders it thinks fit including the removal of your loved one if deemed in his ‘best interests’.

But is this legal ?

s48 MCA provides,

The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if—

(a)there is reason to believe that P lacks capacity in relation to the matter,

( This is usually shown by social worker and GP statements that they believe he lacks capacity, based on his condition- autism, learning disability, alzheimers and his presentation.

Despite the MCA presumption of capacity and ‘incapacity’ based on a person’s disability and appearance alone being prohibited by the MCA.

And what of ‘any matter’? The LA’s S48 application relates to several matters -capacity to litigate, contact, residence and welfare, and is therefore not ‘time’ or ‘subject’ specific as required  by the MCA. )

and

(b)the matter is one to which its powers under this Act extend,

(As MCA powers only extend to people who are ‘incapable’, how can they have such power ?)

and

(c)it is in P’s best interests to make the order, or give the directions, without delay

(This will be shown in the LA’s application by the alleged abuse/neglect/ safeguarding issues which are not proved and cannot not even be questioned. )

The High Court of Protection has already in the absence of anyone other than the LA applicant on paper, decided the grounds for a s48 Order have been made out, so how can they then be disputed in a County Court hearing this power has been delegated to ?

The stage is set.