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.

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7 Comments

  1. It is terrifying that whatever happens, the CoP will destroy the family. Where is the judge or barrister who will withstand this? Wasn’t it Richard Gordon who took the Bournewood case to the ECHR?

    Reply

    1. But if you read my blog post, ‘Precarious Nature of DOLs’, you will see the only reason the ECHR found England in breach of Art 5, Right to Liberty, was because they were detaining an autistic under common law necessity, now they can do this under later MHA, which includes autistics, MCA 05 and the new DOLs under MCA 07, so any detention will now be’ lawful’, so ECHR will not intervene. All the ECHRs do at most, 98% UK applications I believe are rejected, is to make sure member states have ticked their boxes regardless of the fairness of the process, to deprive a person of their liberty.

      Reply

  2. Well said..Has anyone written to alexruckeene from 39 essex about the DOLs further-call? I have but, the e mail address is unresponsive.. it just comes back. On this 2nd Gold Rush issue- My son did not want to leave home and this is “exactly” how inhumane they wanted to act. They proposed to bring the bloody POLICE along to “forced” him out. I then objected, they then “tricked” me. I am bringing up all of this now in their faces. I am being told by Rethink to contact the Supervisory Body to address unlawful DOLs that my missing son under. Anyone got any idea of this? And do you think that they are going to be “impartial” since we have been treated with the greatest acrimony, hatred and unlawfulness.

    Reply

    1. Try “alex.ruckkeene@39essex.com” He should be answering e mails after 20 April. I am going to contact him then, I hope. “They” are never impartial. You should read Mr Justice Charles’ judgments in Martin’s case – in the public domain, but not on Bailii. Finola I can still not believe that they managed to put autistics and learning disability under the MHA – how did they manage it – well we all know that, but surely someone (other than you and I) must be aware of this.

      Reply

  3. You give me a balancing perspective on DoLS, both balancing and sobering. I only hope I can try and be the voice that is loud enough to carry through the tangle of law and corporation to expose injustice and return some sense of sensitivity. Maybe one day I won’t stand alone

    Reply

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