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
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;
(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.
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.