Liberty Safeguards- Executive usurps Court of Protection? Tail wags dog.

1984-poster-3 Liberty

Our government’s proposals to rename and extend Deprivation of Liberty Orders with Liberty Protection Safeguards and create Approved Mental Capacity Practitioners will as the government state;

ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.

Shouldn’t the government ensure that  care is fit for purpose and not merely for’the conditions of the sector’ whose overriding motivation is to make profit ?

So government ‘fits the sector’, a for profit one, by allowing it to be autonomous, self regulating and enforce the MCA.

And outsourcing LAs and NHS CCGs are given the power to remove an individual’s legal competency via a paid MCP rather than a COP judge,  to harvest those from whom corporate profit is made without independent safeguards.

Smashing Art 12 (1) European Convention on Human Rights, Art 5 Right to Liberty, Art 8 Right to Family Life. and Art 6 Right to a Fair Hearing.

So this is the Tory’s shrinking state and social conscience?

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

With the conflicts of interests of LA and CCGs approving and paying the Mental Capacity Practitioners and commissioning the care providers.

The incomprehensibility and unworkability of the Mental Capacity Act the most draconian and only Act of its kind in the world is legendary.

And now an approved mental capacity assessor is effectively charged with enforcing it.

The MCA barely got through Parliament, even with a large Labour majority and took two years to get through the House of Lords and then was made subject to a review .

And this review was devastating.

The House of Lords Select Committee in March 2014 found
’ the poor implementation of the Act by health professionals, is to some extent, symptomatic of a wider marginalisation of mental health issues’.

The College of Social Work giving evidence that the Act was,

‘ not fully understood by professionals, as an enabling piece of legislation, while families and carers painted a depressing picture of their exclusion from decision making’.
https://finolamoss.wordpress.com/2014/11/18/power-of-state-given-by-mental-capacity-act-05-house-of-lords-select-committee-findings/

Despite this, nothing was done to end the MCA’s illegal implementation, nor involve the family or service user, the executive merely increasing MCA ‘awareness’.

And now it appears handing its implementation to its chosen for profit service providers via their commissioners.

https://finolamoss.wordpress.com/2016/03/15/national-mental-capacity-action-day-an-executive-subversion/

Surely there must be some safeguard/check on such a ginormous thing as the removal of any citizen of England and Wales’s legal competency?

But there isn’t.

Once a person is even suspected of being ‘incapable’, a term ever more diluted to in the Care Act  ‘difficulty making decisions’, he, nor his family can effectively apply to the Court of Protection.

An application for Guardianship is expensive, revocable and need recommendations from those caring for the suspected ‘incapable’ ie GPs , Social workers who will be part of the state private care pathway and MASH.

Powers of Attorney are being voided on the grounds of incapacity and the only representation allowed and funded is via an on message Official Solicitor.

Dols are of a precarious legal nature created in 2009 on the excuse of the incompatibility between English Common law not the MCA with Art 5 of the ECHR (right to liberty) as revealed by HL v UK.

https://finolamoss.wordpress.com/2017/03/18/the-precarious-legal-nature-and-creation-of-deprivation-of-liberty-safeguards/

Dols do not exist under the equivalent Scottish MCA but appear now to have been made the tail that wags the MCA dog, as the numbers of Dols applications soar to 0.5% of the population.

https://finolamoss.wordpress.com/2017/03/10/care-providers-applied-for-deprivation-of-liberty-over-0-45-of-english-citizens-with-a-380-success-increase-since-201314/

A Summary of the Law Commission’s Recommendations

http://www.mentalcapacitylawandpolicy.org.uk/law-commission-deprivation-of-liberty-report-the-government-responds/

5. A new system

DoLS should be replaced with Liberty Protection Safeguards. Liberty Protection Safeguards, authorisations should be in place in advance of any deprivation of liberty and should apply to those aged 16 and above and should be capable of applying in multiple settings.

So 16 to 18 year old in schools, care homes and their own home can now be made subject to huge control.

6. Authorising Liberty Protection Safeguards – Hospital trusts and CCGs should be responsible bodies as well as local authorities;

a capacity assessment, medical assessment and necessary and proportionate assessment should be completed before an Liberty Protection Safeguards assessment is authorised; authorisations are to apply for some people whose capacity fluctuates;

So the use of Dols is extended to those deemed to have ‘fluctuating’ capacity ie the epileptic, diabetic and those under the effects of medication. How does this fit with the MCA need to maximise capacity ?

and a responsible body ( LA/CCGs) should in some circumstances be able to rely on previous capacity and medical assessments.

This is in breach of MCA which states blanket capacity assessment can’t be made, as assessments must be time and decision specific.

7. Independence – Assessments should be independently reviewed and a new Approved Mental Capacity Practitioner role is to be created, and assessments should be referred to them

This new role is likely to be like AMHP  a person will be registered and trained by LA and it is a role not a job so they are most likely to be social workers either agency or employed by LA or nurse practioners employed by NHS so anything but independent as LA/CCGs are outsourcers/commissioners for private hospital/care providers.

if there is an objection to the arrangements or in “harm to others” cases.

‘Harm to others’, is a MHA sectioning requirement not an MCA one, and, it is an additional one for sectioning, not an alternative one,  suggesting MHA will be changed to an alternative requirement making it easier to  MHA section.

8. Renewals – An authorisation should last for up to 12 months, after this a responsible body should be able to renew them for up to another 12 months and then for up to three years.

So the present yearly review of Dols is removed after 2 years.

9. Advocates and Appropriate Persons – An Independent Mental Capacity Advocate should be appointed unless a person does not consent or it is not in their best interests, or if the local authority determines there is an appropriate person to support and represent the individual.

So even an incapacitated’s right to consultation via an IMCA can now removed at the behest of the state.

10. Interaction with the Mental Health Act – Liberty Protection Safeguards should not apply to arrangements in hospital currently authorised by the Mental Health Act and the government should review mental health law in England and Wales with a view to introducing a single scheme to cover non-consensual care for the treatment of both physical and mental disorders when an individual lacks the capacity to consent.
This appears to suggest the incapable will be removed from MHA to MCA for all treatment.

Appears to signal the removal of the need for MHA section, if a person lacks capacity, allowing easier detainment in mental hospitals with no right to refer to a mental tribunal. 

11. Wider Amendments to the Mental Capacity Act – Past and present wishes and feelings should be given greater weight as part of best interests decisions,

these are in any event required  by the MCA, but who checks and enforces this has happened as courts will not interfere in service provision.

the statutory defence under Section 5 of the Mental Capacity Act should not be available for certain important decisions unless written records are kept,  merely enforces documentary evidence not that the decision was reasonably required.

the Mental Capacity Act should be amended to allow emergency deprivations of liberty so liberty can be removed at any time and post factum justified

as long as a written record is provided afterwards and an individual should be able to bring civil proceeding against private care home and hospital providers if there has been an unlawful deprivation of liberty.

Who would have the locus standi to commence civil proceeding not the family only the service user and he has no capacity to litigate at best it could be through an Official Solicitor appointed by the state to sue the state.

Cause of action is practically non existent, as provided care providers/hospitals act reasonably on the balance of probabilities an action will not succeed.

And damages will be nominal, so what independent lawyer would take on such an action on a no win no fee basis and the loser would be ordered to pay huge corporate lawyers bills of both service provider and NHS/LA commission.?

This surely therefore can’t even amount to a sop to accountability.

Our Response
12. We thank the Law Commission for completing a comprehensive report into mental capacity and Deprivation of Liberty Safeguards and we have considered their recommendations carefully.

13. We agree in principle that the current DoLS system should be replaced as a matter of pressing urgency and we have set out our provisional stance regarding each specific recommendation below.

14. We will legislate on this issue in due course. However, before the introduction of any new system, we will need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.

It is clear from the following passage from the Government’s interim Mental Health Act Review the government intend to assimilate the MHA and MCA which is not good news as the later has been shown to be unworkable

It will be necessary very carefully to consider the interface between the MHA and the MCA more widely. Should MCA concepts of Powers of Attorney, Advance Decisions to Refuse Treatment, and court-appointed Deputies have a role in care governed by the MHA? Should we join up advocacy services provided by both pieces of legislation, possibly with other health advocates, to produce a unified and accredited service? Surely it should be possible to standardise the legal oversight between the Court of Protection and the Mental Health Review Tribunals so that at least issues of detention can be dealt with by the same tribunal. It may also be necessary to consider if and how their jurisdictions could be widened.
There are other areas in which we are also clear, even at this early stage, that change is

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13 Comments

    1. Thank you. Its all very depressing and the establishment are so adept, at slipping things in under the radar, which appear innocuous but effectively are cataclysmic, and wrapping them up as improvements…. Masters of subversion, semantics and PR…..

      Reply

  1. Hi Finola I went through the various statements made to the JCHR yesterday. If Martin were not involved I would have fallen over laughing, they are so divorced from reality, but it is just tragic. In the CoP in Cardiff no-one had the least idea what fluctuating capacity was, let alone how to deal with it. Read Mike O,Brien for the LA on 8th August judgment. Latest from Martin – Mr Justice Charles was wrong he is going to telephone the CoP in London today, and ask Sir James Munby to call him on his mobile!

    Reply

    1. If you read my latest post you will see the government are legislating via Law Commission recommendations for ‘fluctuating capacity’ which shows the courts have not yet caught up with what they are told to do by the executive which proves there is no separation of powers as the judiciary are not acting independently.so no check on executive so no democracy …………….

      Reply

  2. Question 1: Should people be given the right by law to say who they want to support them to make decisions?

    My Response: Yes! but, once the incapacititious person {LD/Autism}chooses their closest Family to support them, that is then covertly used by Councils, the Litigation Friend and the COP against innocent parents. The untrue bureaucratic phrase used is “P is heavily influenced by Dad/Mom and needs to learn to make his/her own decisions independent of Dad/Mom”. These colluding individuals then uses the unworkable MCA and goes into entrapment and employs a tricky covert overdrive plan to offer P a Trial in living away from their impeccable Family, P’s capacity is then fabricated {Blanket Assessment}. They then make all decisions for P {which is against his/her Family} and their Family “never” see them again. So, we now are told “P has capacity and does not want to see you all nor return home”. While an Independent Psychiatrist concluded that “P does not have such capacity and cannot gain it”. We now have a situation where many years has gone by with P being covertly and unlawfully Deprived of his Liberty {Law Commission/Cheshire West’s/HL v the UK/G&E/Neary Findings}. The major problem is and has been Professionals “abusing their powers”, including Judges within the COP who embraces Gender Inequality. And no one dares to challenge this unlawfulness because, they want the same Judge {to dismiss the application}to preside if the matter is ever brought back to the Secret Court. We as innocent Families knows our loved ones best and we should be making or assisting them in their decision-making as we have their Best Interests at heart.

    2. When should someone else be able to make a decision which if different to what the person wants?
    My response: What needs to be considered is P’s wishes before he/she went into care and the reasons why P went into care. P disclosed his strong views to professionals about who he/she wants {Dad} to make decisions on his/her behalf as it kept him/her safe, happy and healthy but, this was rejected by the COP and other colluding advocates because of Gender Inequality. After many years of no contact, P has become a thief, badly behaved, a sexual threat to women, obese and runs from his family {who is unfairly gagged} if they do see him in public.
    I copy and paste Charles J’s wordings from NRA.
    http://www.bailii.org/ew/cases/EWCOP/2015/59.html
    226. I also agree that questions, or a mechanism for addressing the following issues, would be likely to further assist in clearly demonstrating whether the care package is the least restrictive available option and one that can be approved without a hearing:
    i) if the proposed placement is planned and has not yet taken place, there should be an explanation of whether or not a transition plan has been produced, a provision to append the transition plan and an explanation as to how the placement will be reviewed, particularly in the context of responding to P’s reaction to his or her new placement. This would inform the timing of a review by the court,
    ii) if P is already living at the placement in respect of which a welfare order is sought the following information should be provided, namely the date P moved there, where he or she lived before, why the move took place, and how the move was working
    iii) any recent change or planned change in the care package and the reasons for it should be provided,
    iv) there should be a specific requirement to explain why the identified sedation or restraint are or may be used, and why they are the least restrictive measures to deal with the relevant issues,
    v) there should be a question about the tenancy agreement (if there is one) and who has the authority or needs to apply for the authority to sign it on P’s behalf,
    vi) there should be a specific question as to why it is thought the case is not controversial and can be dealt with on the papers,
    vii) there should be a question directed to participation of family and friends over the years and the nature of the care and support they have provided and their approach to issues relating to its provision in the past and so whether and the reasons why it is thought that family or friends have provided and will provide balanced support for P in his or her best interests,
    viii) there should be a question that requires the reasons why family and friends support the care package to be set out,
    ix) there should be a question directed to the willingness of a family member or friend to be a litigation friend or a Rule 3A representative and their ability to keep the care package under review,
    x) there should be questions directed to the suitability of family members or friends for such appointment that direct the author of the answers to particularise the answers by reference to the history of P’s care, and
    xi) there should be a question on what options have been considered and why the care package advanced has been chosen as the appropriate one.
    Family should always be the incumbent to make decisions in their loved one’s lives as they have their best interests at heart and knows them best. The Law Commission confirms this.

    3. Should care home managers or local authorities assess whether a person should be deprived of liberty?
    My response: Since the Law Commission’s accurate findings “Hundreds of Thousands of disabled people are being unlawfully Deprived of their Liberty in care home and other settings under the unworkable MCA 2005 DOLs”, {My VIP is one of them} there was a large increase in DOLs applications in COP. Speaking from my personal experience, a Special Tribunal Court System {with innocent Families input} must be created to assess whether a person should be deprived of his/her liberty. I say this because of my horrible experiences with the COP, advocates, local authority and care home manager’s. They are not independent and always works against innocent families and their loved ones. They know P lacks capacity and prevents him/her from contacting us and coming home. P’s Care Plan is too restrictive, as he wants to come home and did escape back home twice. This is confirmed after 4 years on no contact. The {SW and LF} misled and state “P does not wish to see his Dad and brother nor return home” but, that was untrue as he DID happily return {behind their backs} last year once “encouraged” by another sibling who met P. On the unlawful DOLS, Lady Hale’s submissions in P v Cheshire West states at paragraph 46:
    “What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”
    When considering whether the acid test outlined in P v Cheshire West is met, it is important to remember that just because an individual is physically unable to leave their placement it does not necessarily follow that the individual is not free to leave. Instead, it should be asked would that individual be allowed to leave if assisted to do so. If this would be facilitated then the individual is not deprived of their liberty.
    By rejecting the accurate findings of the incumbent independent psychiatrist and using a blanket assessment while P was prevented from seeing his family and fabricating capacity means that P is unlawfully being Deprived of his Liberty.

    4. When should someone get an independent assessment from the local authority?

    My response: The general rule would be that the responsible Body will be the authority responsible for meeting a person’s needs under the Care Act 2014 but, innocent Families have zero confidence in their local authorities and we will NOT rely on getting a “truly independent” assessment done by them. I believe these assessments should be done by Independent Psychiatrists. If cost is an issue, then the Department of Health should provide an independent expert in Mental Capacity or an AMCP “must” be truly independent and provide such assessment with innocent family present and the assessment recorded for proof.

    5. Should it be up to care homes to decide if a person gets an advocate?

    My response: No! because of collusion. Families should advocate for their loved ones as we have their best interests at heart and knows them best. Family is the bedrock of society. From experience, Care Homes colludes with Advocates/OS, LA’s and they all are against innocent families. The present Care Home prevents P from coming home and seeing us. He is saying randomly in public “I am not allowed to have contact with my dad”.

    6. Which people need an advocate?

    My response: Off course people who lacks capacity will need an advocate but, when the COP, LA and OS will fully fabricates P’s capacity {and he does not- according to the independent psychiatrist} and lies and makes all decisions for him {which is against us, how can P have an advocate? During proceedings, they hired and paid their own advocate for P who lied all the way. In my view, innocent dedicated parents should advocate for their loved one’s rather than a complete stranger who is most likely to be influenced by the LA and other professionals. Independent Checks should be carried by Family.

    7. What should advocates do when a person is complaining about their care?

    My response: Our VIP once forced out, showed his distress many times. He became a thief, became Obese, became a threat to females, threatened to violent attacks and was disallowed to come home/see us and had an advocate who knew of these horrible things but this advocate did absolutely nothing. The Litigation Friend was also incompetent and misled the COP. It was deaf/blind advocacy and legal representation. Early in the forced transition, P will tell me his fears, likes and dislikes and once I complained, I became a criminal and was treated like one. I am gagged and have No Liberty for being a caring dedicated parent. The inherent jurisdiction was also invoked on myself and I did no wrong while, their preferred person {who fooled them} was given contact to abuse P in all shape and form. Everything backfired and they {including the Judge} refused to apologize. I also have had no contact for almost 6 years now and that is the way it will stay forever unless robust, humane changes are made to this unworkable MCA. Family should advocate for their loved ones and represent them in court as well. This is mentioned in every submission, speech and findings today since the Law Commission’s accurate findings in 2016 which was accepted by Parliament {LPS to replace MCA}.

    8. When should people have the right to go to court and tell the judge what they think about their care?

    My response: My VIP did NOT get to see the Judge {Non Participation of P}. His/her Representation was incompetent and had adverse interests as to P’s best wishes. People has a right under the ECHR to participate in their proceedings. Hearsay evidence was used and that is the reason why I believe that a Special Tribunal should hear these applications. The COP is over-bureaucratic, biased and busy. It cannot be right to carry out reject an independent psychiatrist’s findings, do a capacity assessment when P has been turn against his family, has not seen them for many months, fooled with his own flat by a SW, his advocate was hired by the LA and assessment {which is full of wrong information} not done in a neutral venue. The unworkable MCA states “If P lacks capacity every effort must be made to assist him/her to make a decision”. This is wrong as the decision they want P to make is to not see his family again in a Best Interests Hearing which was morphed into impossible ‘Capacity Gaining’ process. It all backfired anyway.

    9. Is there anything else you would like to say about these proposed changes to the Mental Capacity Act?

    My response: According to the recent MHA Survey, which asks “If a person with LD/Autism is detained, what support should be put in place”? The overwhelming suggestion/choice from Parents/Carers was “Families should be able to visit their loved ones in the area in which they live and sleep”. The COP, LA and OS did the opposite. They allow us no contact while we did P no wrong and they allow a very domineering, abusive and dishonest relative to see him. P is then abused in all shape and form and they do nothing but, asks for “Reaffirment of the Agreement”. They then covertly blames P for deciding to have contact with this relative while, the Judgment and other Statement/Order/Reports “clearly” shows that they preferred and made the decision for P to see this abusive person and not us. Using a blanket assessment while refuting the incumbent independent psychiatrist’s accurate findings was the biggest blunder and “abuse of powers” because, everything backfired and P did happily escape home a second time once “encouraged” by a family member{Cheshire West-Lady Hale- A Gilded Cage is still a Gilded Cage}. From this {and maybe more hidden ones} horrific, wholly unacceptable and deeply distressing experience, these sort of cases should not be presided in COP but, rather a “new fair” Tribunal Court. because, all adults with Learning Disabilities/Autism that lives happily with their Families can be forced out under the unworkable MCA, contact stopped {even though contact was promised by the OS}, P’s capacity is then fabricated, the LA/care staff makes and others makes all decisions for P {which is against their families} and their families never see them again. COP Judges has the power to abuse their powers, favour a party {gender inequality}, disregard one’s Fundamental Human Rights, invoke the inherent jurisdiction, gagg us and there is nothing we can do but suffer mental illness. All of this is simply deeply distressing and wholly unacceptable in any Democratic Society.

    Reply

  3. Reblogged this on finolamoss and commented:

    Liberty Safeguards will replace DOLs under new amendments to the MHA, these will allow the executive via their LA/NHS employees to decide who is capable of making any decision for life. These employees are termed Approved Mental Health Act Practioners ,so encombass both Mental Health Act sectioning and Mental Capacity Assessment . Effectively allowing those sectioned under MHA, subject now to tribunals and reviews to have all their decisions removed for life. A huge state control and massive tool to harvest for the private care and pharma industries.

    Already, it would appear that the LA, on removal of autistics/LD/suspected incapable from home, are using a similar modus via IMCAs in their COP s48 applications
    as the standard social worker application in support of such removals states;
    A detailed Mental Capacity Assessment with subject of the application will be undertaken in order to assess their ability to make decisions around their care and support and where they live. The LA will apply for an IMCA for this purpose ( yet Codes of Practice state these should only be used if no one else is available and only in an advisory role ). The IMCA will also carry out some in depth work with the subject of their understanding of their family life, their living options, who they would like to have contact with and their activities .
    So it would appear in practice via the backdoor IMCAs are already doing the proposed new role AMHAPs job, although not their specified IMCA role.
    Such is the mendacious use of Social Workers and the LAs total determination to commit the ASD/LD ETC into for profit care
    So not much change with Liberty Safeguards just more bureaucratic flesh and huge extension of MHA powers, as these will in many cases replace sectioning- A terrifying visa for liberty, democracy but huge haul for the for profit care industry.

    Reply

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