s4 and s5 Mental Capacity Act – No blame, total control ‘care’ only ?

blame bigstock-Arrow-Signs-13878395

Despite the unworkability/illegality of capacity assessments and the draconian, no rights nature of the Mental Capacity Act.

And the secrecy of all process. and lack of independent representation. by appointed Official Solicitor, of the ‘incapacitated’ in the Court of Protection, the executive appears intent with its latest Law Commission Report on Deprivation of Liberty Safeguards, renamed Liberty Protection Safeguards, to allow LA/NHS executive and not COP to enforce the present MCA practice, to aid ever more efficient private care profit and speedier pathways.

And protect Care for profit companies from legal claims, to avoid expensive Insurance claims

http://www.communitycare.co.uk/2017/03/13/law-commission-reveals-deprivation-liberty-safeguards-replacement/

Incapacity of a person is the gateway to MCA power And its decision, and under new Liberty Safeguards is left to The executive LA/NHS commissioners of the care home services they also oversee

A huge conflict of interests, and worse as capacity has illegally been extended by courts to include ‘fluctuating capacity‘ not provided by the MCA

tHIS CAN BE used to allow anyone, assessed capable to be assessed incapable on a daily basis

 under Act anyone can assess them and Liberty Safeguards preclude any check

on system via application to court.

Why ? – LIBERTY SAFEGUARD and FLUCTUATING CAPACITY CHANGE- ONE BY LEGISLATION OF MAY OTHER BY COURTS ?? 

It  appears that without ‘incapacity’, care providers are reluctant to provide care, as they wish to avail themselves of the protection from liability the Mental Capacity Act s5 affords them.

And control the service provided by making all decisions in a person’s best interests as allowed in s4.

s 5  states;

Acts in connection with care or treatment
(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 matter in question, and

(b)when doing the act, D reasonably believes

(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.

And s 4 states;

Best interests

(1)In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—
(a)the person’s age or appearance, or

(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(6)He must consider, so far as is reasonably ascertainable—

(a)the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and
(c)the other factors that he would be likely to consider if he were able to do so.

Barrister Alex Ruck Keene author of LAG Court of Protection Handbook, authority and practitioner says,

many professionals behave as though section 5 provides an authority to act.

Worse still, in doing this the professional might be motivated by a desired outcome from the start, followed by the question: ‘does this person have capacity?

In effect, some professionals want the person to not have mental capacity, in order to authorise their decision making, conveniently forgetting about principles 4 and 5 of the MCA, and section 5.

The MCA then is frequently skewed in practice, not to enable the person, but to provide a dubious mechanism for going against the person’s will.’

Exactly the opposite to the Parliamentary justification  for the MCA, which was to safeguard people who had capacity from  others making  their decisions, and to maximise a person’s capacity, and if this proved impossible to give effect to the ‘incapacitated”s wishes and involve them in the decision making.

http://www.communitycare.co.uk/2017/09/27/mental-capacity-act-10-years-still-misapplied-used-people/

So  professionals employed by the care providers will not be liable for any act done to the reasonably suspected incapable, if they reasonably believe it is in  that person’s best interests.

That is a lot of ‘reasonable beliefs’ and protects a lot of people and corporations in fact everyone.

In  no  other service, do we have such whole scale exemption.

And, as these actions are done to  our most voiceless, in secret, with no independent voice, or possible whistle blower for profit, scrutiny and liability should be the highest possible not effectively non existent. .

In addition, it appears service providers are  assuming ‘incapacity’ to enable all care decisions to be made by them,  even in respect to decisions a person is capable of making, despite the s1 overriding provision stating capacity must be presumed and this presumption rebutted by evidence on the balance of probabilities.

‘Incapacity’ can in any event,  be bureaucratically  tick boxed, by a non engaged expert assessment.

But even this is often not happening, as providers are relying on s5 that they reasonably believe a person is incapable and then making all their decisions under s4, purportedly in their best interests.

s4’s requirements that ‘so far as is reasonably ascertainable the person’s past and present wishes and feelings’ and  the need to involve them in the decision making process is being ignored.

As who will argue and check they have  been complied with ?

And what in any event would be the sanction ?

If a Company’s prerequisite for provision of services is the avoidance of any liability. and control of  all  the service users’ decisions, what is that saying about the service ?

s4 and s5 are  very dangerous provisions, particularly in the for profit , commercially aware , secret world of the itinerant care of those without a voice.

Particularly, as the courts will not in anyway interfere into the provisions of services. and under Liberty Safeguards courts are removed.

https://finolamoss.wordpress.com/2017/05/06/best-interests-no-choice-no-outcomes-no-accountability-the-story-of-mn/

12 Comments

  1. Well said but, will the new Liberty Protection Safeguards oversee the end of blanket assessments, collusion, Family as RPR {end of the road for the OS} and Judges respecting the vulnerable’s Best Interests?

    Care Providers are also uncaring and have no respect for their client’s best interests and Family.

    The COP does not care to involve P {as you rightly say and it is also my experience} therefore, if the CoP has all the power and it is NOT FAIR, how can Families and their loved ones ever WIN or even prevail?

    Parliament makes the Laws but, in my sad experience.. the bloody Judges pays no respect to it {Articles:5,6 & 8 Family Life etc}.

    We are then left with the very tedious task of getting the ECHR’s meticulous application process RIGHT within the 6-month period and when we do manage to do so, a Single Judge deems our “competent” Application “inadmissible” under Articles:34/35.

    None of this makes any sense at all.

    Innocent Parents are always facing an uphill battle for Justice and if the rich one’s decides to spend tens of thousands, they can get Justice but, what about the depressed Alienated Parent who relies on Benefits to survive and there is No Legal Aid available?

    Which option costs the Government less? A vulnerable person living with Family Carers or in LA Care? As you rightly say “They are used as cash cows”.

    When will this senseless evil draconian practice ever end?

    Reply

    1. I dont believe it will ever end – corruption and collusion are rife.

      Mr Justice Charles’ judgment of September and October 2007 (the 10th Anniversary of the MCA is this month) stated that the Official Solicitor’s case was a “SHAMBLES” The Official Solicitor was acting as my son Martin’s litigation friend in this case.

      The judgment is in the public domain.. Charles also states (Para 5) “The affidavit evidence ranges ovr a number of areas. It has verylittle direct evidence in it and a mass of hearsay… (Para 6) “Also when the case began there was NOT A CARE PLAN……..”

      The OS continued as Martin’s litigation friend until July 2008. Charles also put a penal notice on me “SB is FORBIDDEN” from discouraging MB from going to the Wincroke Unit……….” etc.

      The OS proposed sectioning Martin in order for him to be treated in this “learning disability”unit.- In the event, Martin went voluntarily, but was never allowed to leave.

      In 2005 Martin had been illegally sectioned, and placed in a high security psychiatric ward.

      Now ten years later he is again in the CoP, and a S21A challenge to the DOLS from March 2017 has disappeared. The case now comes under a hearing on capacity. Of course it will never end………

      Reply

      1. As ever Shirley you hit the many wrong nails on their heads.

        We have an inquisitorial system put in place by the MCA, in the COP.

        This means hearsay and opinion without basis on facts, can be accepted as proof by the Judge of incapacity, family abuse/conflict and best interests.

        As you have found to your own financial and dreadful personal cost, and the horror you have endured for the past 10 years, merely trying to protect your son, who you had already cared for over 30 years.

        This however was discarded by the COP in your son’s ‘best interests’ on apparently any accepted inadmissible ‘evidence’.

        As a result contact and communication between a mother and son has now been controllled on this non justification for over 10 years.

        On no legal grounds, as your son can only be made subject to the MCA, if he lacks capacity to make a particular decision, which needs to be made, at a particular time in his best interests.

        This has apparently not been shown .

        Your son should have represented himself and/or instructed his own lawyers.

        His Official Solicitor in law, is one of last resort and is charged in law to act as his ‘next friend’, ie to do what his client wanted.

        Such is the power of the MCA to control a person and every aspect of their life and relationships .

        Such is the power of the state now in Britain, but thankfully not yet in Northern Ireland.

        And it can all be done on an arbitrary basis to aid LA/NHS policy..

        Thank you for your comment it is very illuminating and very frightening.

        Best Wishes Finola

    2. Dear Dan,

      As to be expected, and as you say, the Law Commission Report will make no difference except to make sure the boxes are ticked and processes evidenced but with no possible opposition or independence.

      As you say there is no point/hope of appeal to EU, as over 92% of applications to them for breach of human rights are rendered inadmissible.

      Wonder why ?

      So MCA not being applied as drafted, HRA 98 not even considered and EU not accessible……….

      So we are all at the mercy of the State.

      Thank you for your comment it is much appreciated.
      Best Wishes,
      Finola

      Reply

  2. Reblogged this on finolamoss and commented:

    No legal safeguards of the millions in State for private profit Care

    Care now decided on by the executive- LA/NHS not the courts

    Anyone, on a mere. reasonable’ basis, can decide if a person incapable and this can be fluctuating and remove all decisions from them for life

    The MCA capacity test appears unpassable, if targeted .as it is against the old, mental. epileptic. autistic or learning disabled or indeed any behavioural problem

    Huge profit for care corps. with no checks or even liability for care but huge profit as paid £8,000 + a week per incapable for life and not regulation as to their services. Family can and are being excluded. *

    Reply

  3. Finola, you state, they fabricate “Incapacity” to take control of P and use P as a “Cash Cow for Profit” but, in our case, P is incapacitated but, they conflated P’s capacity and state “P has full Capacity” and they {Judge, LA, and OS} then make all decisions for P. allows NO Contact and lie and say “P is making the decision not to see Family”.
    What backfired on them is 7 years after the Capacity-Conflation {P has Fi=ull Capacity}, P got arrested and the NHS assessor now has to write “The Truth” on P’s Capacity, and she did {Lacking Capacity}. She then sent the family the assessment by mistake and that opened up a can of stink rutting worms.
    P’s Family now takes the matter to the COP who took the right course on Capacity {This court believes that there is evidence that P lacks capacity in all areas} but, both LA and OS made every unlawful dash to protect the first biased judge and their abuse of powers in conflating P’s capacity.
    In the end, they threw the innocent Family’s valid Application OUT!!

    Reply

  4. Liberty Protection Safeguards (LPS)
    Latest developments
    In July 2018, the government published a Mental Capacity (Amendment) Bill, which passed into law in May 2019. It replaces the Deprivation of Liberty Safeguards (DoLS) with a scheme known as the Liberty Protection Safeguards (although the term is not used in the Bill itself).

    The Act draws to some extent on the Law Commission’s proposals for reforming DoLS, but generally does not address some of the wider MCA reforms that the Law Commission suggested. So proposed reforms around supported decision-making and best interests are not included, although those omissions, and other changes from the Law Commission’s suggestions proved controversial as the Bill went through Parliament.

    Key features of the Liberty Protection Safeguards (LPS) include:

    In line with the Law Commission’s suggestion they start at 16 years old. There is no statutory definition of a deprivation of liberty beyond that in the Cheshire West and Surrey Supreme Court judgement of March 2014 – the ‘acid test’
    Deprivations of liberty have to be authorised in advance by the ‘responsible body’.
    For NHS hospitals, the responsible body will be the ‘hospital manager’.
    For arrangements under Continuing Health Care outside of a hospital, the ‘responsible body’ will be their local CCG (or Health Board in Wales).
    In all other cases – such as in care homes, supported living schemes etc. (including for self-funders), and private hospitals, the responsible body will be the local authority.
    For the responsible body to authorise any deprivation of liberty, it needs to be clear that:
    The person lacks the capacity to consent to the care arrangements
    The person has a mental disorder
    The arrangements are necessary to prevent harm to the cared-for person, and proportionate to the likelihood and seriousness of that harm.
    In order to determine this, the responsible body must consult with the person and others, to understand what the person’s wishes and feelings about the arrangements are.
    An individual from the responsible body, but not someone directly involved in the care and support of the person subject to the care arrangements, must conclude if the arrangements meet the three criteria above (lack of capacity; mental disorder; necessity and proportionality).
    Where it is clear, or reasonably suspected, that the person objects to the care arrangements, then a more thorough review of the case must be carried out by an Approved Mental Capacity Professional.
    Where there is a potential deprivation of liberty in a care home, the Act originally allowed for care home managers – if the local authority felt it was appropriate – to lead on the assessments of capacity, and the judgment of necessity and proportionality, and pass their findings to the local authority as the responsible body. This aspect of the Act has generated some negative comment, with people feeling that it might lead to insufficient independent scrutiny of the proposed care arrangements. In light of this, the government has confirmed that this provision will now not be implemented when the new system comes into effect in April 2022. It will instead be kept under review.
    Safeguards once a deprivation is authorised include regular reviews by the responsible body and the right to an appropriate person or an IMCA to represent a person and protect their interests.
    As under DoLS, a deprivation can be for a maximum of one year initially. Under LPS, this can be renewed initially for one year, but subsequent to that for up to three years.
    Again, as under DoLS, the Court of Protection will oversee any disputes or appeals.
    The new Act also broadens the scope to treat people, and deprive them of their liberty, in a medical emergency, without gaining prior authorisation.

    The target date for implementation is now 1 April 2022. Prior to this, following a 12-week consultation planned for 2021, both a single Mental Capacity Act and LPS Code of Practice, and regulations, will be laid before Parliament and subsequently published. The sector trusts this will bring clarity to some outstanding questions about how LPS will work in practice and the training and implementation required.

    P’s Family is sadly left out and told to get lost. How can this be acceptable, lawful and fair?

    Reply

    1. Thank you for all this detail Hope its read State rules for profit Where is HRA ? right to family life or indeed MCA ? BEST WISHES AND THANKS FINOLA

      Reply

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