Gold Rush 5. Trapped for life by the illegal myth of ‘ general incapacity’.

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The designated County Court of Protection is busy and under a duty to deal with matters expeditiously.

So the next court hearing is case management to move quickly to what is in your loved one’s ‘best interests’.

So wherever possible parties must agree matters before the hearing .

And family members represented or not are harried by the local authority and Official Solicitor into agreement.

Usually in a small, 8×6 windowless room with insufficient chairs for its 5 or more occupants.

With the pressure of never knowing when they will be summoned to court, as all hearings are set for 10.30, a month of sleepless nights and the horror of being in the place that can remove their loved one.

An expert report states they  are ‘incapable’ and this must be agreed before the court has jurisdiction.

Initially the Official Solicitor and Local Authority will try to get you to concede your loved one does not have the capacity to litigate .

Confusing as does the MCA test, capacity to make a decision as defined by the Act with the ability to perform that decision once made.

They know capacity to litigate is the most difficult one not to concede.

As who would have capacity to litigate ?

How could anyone foresee the consequences of deciding to litigate or not unless they were a mental capacity lawyer .

Once this is agreed its then a slippery slope to conceding incapacity to form relationships as again they are unable to foresee the consequences.

Particularly on a perfunctory basis where relationships with family members are equated with those with strangers.

Experts report the autistic only exist in the present and can therefore never pass the MCA capacity test as they are unable to foresee the consequences of their decisions..

Yet a declaration of general capacity is not allowed by the MCA, which states capacity to make a decision must be assessed in respect to a specific decision at the time that decision needs to be made without delay in a person’s best interests.

As the MCA was passed to increase autonomy not destroy it.

Regardless of this, the standard court ordered assessment will be in relation to effectively all decisions- capacity to form a relationship , choose where to live, medication and all day to day decisions.

These are many decisions and most, if not all, need not be made at the time of the hearing without delay in a person’s best interests.

The expert has been chosen and remitted by agreement between the Local Authority and Official Solicitor whose continued employment is dependent upon that expert finding incapacity.

And his role is largely prescribed to find your loved one ‘incapable’ of making decisions in relation to those asked for in the court order.

Despite the fact it is often unlikely this expert has engaged much with his assessee.
And despite the fact it is unlikely when he visited your home he took ‘all practicable steps to help him [make that decision]…….without success’ s1(2) Mental Capacity Act.

The mental health industry is apparently awash with people who do not engage with their assessments. .

And we have no numbers of those who are found capable, if any.

If family do not agree ‘incapacity’, the judge may declare it, with or without a contested capacity hearing.

Again we have no numbers of those were the court of protection have declared capable.

It is impossible to appeal a county court capacity declaration beyond the local high court as capacity is treated as a case management issue despite its jurisdictional nature.

Once incapacity has been agreed /declared, any Enduring/Lasting Power of Attorney is set aside on the grounds of retrospective incapacity, despite the MCA providing capacity is presumed until it is set aside on the balance of probabilities.

And all relationships with family members are voided as your loved one is incapable of ever being able to form them.

Now the state controls your loved one’s decisions for life and can move to whatever they decide is in his ‘best interests’.

And neither family member nor indeed the subject of the proceedings has any say in the matter.

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  1. I can see the Government just published ‘Children: residence and contact court orders and related matters for parents, grandparents and others’.

    Can I ask whether this includes Adults with Learning Disabilities/Autism etc. as well?

    Can I ask for Mediation regarding my missing son {who they stole} and allows no contact while, we did nothing wrong to him?

    Thanks, write soon


    1. In private law a disabled child is treated like any other.

      But once the child is made subject to public law, by virtue of the LA obtaining a care or care supervision order, then these orders can and do vary these rights, and can effectively stop all contact from any or all family members, if the court decides it is in a child’s ‘welfare’ .

      Similar can happen when the child reaches 18, if assessed ‘incapable’ under the MCA, the court of protection can decide who the child sees in ‘his best interests’, if as he usually will be he is ‘incapable’ of making decisions as to his welfare which includes who he has a relationship with.

      Public law overrides private rights, allowing family rights of any sort to be removed if the court decides it is in child’s welfare, or an incapable adult’s ‘best interests’

      I wish, for all our sakes I was wrong, but can’t see how except for free standing actions under s8 HRA, right to family which are rare if ever ? for a mandatory injunction to enforce access, or if it is a LA decision judicial review of the decision to refuse contact as well, but no legal aid and risk huge costs if you lose.If anyone reading knows of any such successful actions please blog comment

      As its terrifyingly draconian, and both care and cop are secret courts, parents can therefore be gagged and both are effectively inquisitorial.

      I expect you will be very disheartened by this, I know I am……………………………

      Best Wishes Finola


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