Goldrush Part 4. Pointless ‘Assessments’ and the person subject to COP is never represented.

noface

A court date will be set in a months time and your home will be occupied by the state regardless of the affect on you and your vulnerable loved one .

Two social workers will arrive in your home every week for over an hour.

Your GP will be sent a detailed remit of what is needed in his s49 report and state the local authority have concerns about your care.

He is given the option of not actually examining should this prove difficult and will normally rely on medical records and you for information.

Information already existing and shared illegally in a Multi agency Safeguarding Hub with all agencies.

You will, on threat of court proceedings, have to provide paper details of months of DLA payments before legal aid can be granted to the lawyer appointed by the Official Solicitor’s Office to be the ‘incapacitated’s litigation friend, to purportedly represent him.

As family carers are cast as abusers, they can’t instruct a solicitor to represent  their loved one, even if they had the funds, as now a conflict of interests exists between them and their child/spouse/parent.

It is impossible to find the numbers of Official Solicitors appointed or the public cost, as they are not subject to Freedom of Information Act Notices.

https://www.whatdotheyknow.com/request/appeals_under_s21a_mental_capaci

And there is no guidance in the MCA or in any supporting materials, as to how a litigation friend should discharge his duties in the court of protection.

At common law his duty is to represent the person subject to the proceedings and relay as clearly as possible his wishes to the court. RP v United Kingdom at paragraph 76.

But in the practice now created by case law, the Official Solicitor’s representative function, has been replaced by an investigatory one, which supports what the court and local authority believe is in his ‘client’s’ ‘best interests’, rather than what his client actually wants.

As there are many cases which show that an ‘incapacitated’ ’s litigation friend hasn’t positively advanced, or has conceded matters, he would not have done, if he were representing him, as is his duty in law as his next friend.

So it appears, in a court, statutorily created to protect the vulnerable, no one is actually representing him or arguing his case.

But instead, arguing what the court believe to be his case and what they believe is in his best interests.

So ‘substitute decision’ making is the norm in breach of Article 12 of the United Nations Treaty on Rights of Disabled.

https://finolamoss.wordpress.com/2015/12/03/the-convention-on-the-rights-of-persons-with-disabilities-be-their-voice/?frame-nonce=d0f83434c0

Nor, unless the family can afford it is anyone defending family carers and arguing their case.
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https://academic.oup.com/medlaw/article/24/3/333/2733263/Litigation-Friends-or-Foes-Representation-of-P

So an Official Solicitor will be another visitor.

And again you will provide the information on behalf of your loved one, but, as you are cast as abuser, and the OS role is now investigatory, he will be suspicious and note matters supporting the LA case, unhygienic/disorganised home, lack of care, signs of risk.

He will then write up his witness statement without approval from either you or his ‘client’.

A psychiatrist and psychologist will be jointly instructed and remitted to assess your loved ones capacity and psychological and emotionally wellbeing.

Again you will provide the information and again there is likely to be little engagement with the  assesse.

A local authority carers assessment of  family members will need to take place, although this can’t be forced but you’ll think it can because  it is contained in a Court Order.

Carers Assessments  involve a very intrusive, detailed investigation into the effects of caring on all members of your family , disclosure of all medical records and psychological assessments.

A two hour continuing NHS financial assessment will also need to be factored into your busy schedule.

But it is  rare for funding to be provided for support in the family home, despite the same assessment of need allowing on average £80,000 per annum for such support in private residential care.

An assessor of your loved one’s possible benefits will also need to visit.

During this deluge of bureaucratic, pointless scrutiny, you will need to maintain a spotless, tidy house and care meticulously for your no doubt distressed family member, without support .

You cannot complain, or even voice irritation .

Complaints about provision are not considered and stayed once court proceedings are applied for.

And will be evidence of your inability to work with professionals putting your loved one at risk the basis of the s48 application.

You are trapped, worn out, with no help and no where to turn and have court documents from two  sets of solicitors to attend to.

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

Lynching_Statue

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 visited by their loved one for life, is in the hands of a single care worker.

Their opinion on not knowing you or your loved one is paramount.

In their imprisonment your loved one will receive no family concern, spy cameras, possible complaint; no oversight ‘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 upon them, deemed in his ‘best interests’ once he is only ‘reasonably’ believed incapable of making the decision, by a commercially aware, for maximum profit service .

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

How will it 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.