Posts by finolamoss

Solicitor qualified 1981.Weightmans, Liverpool. College of Law Chester Senior Lecturer 1981-89, Litigation, Evidence, Employment and Consumer, Conveyancing and Landlord and Tenant. Law Society examiner in above topics, Senior Lecturer Sheffield Hallam University 1993- 2012. Equity and Trusts, Land and Evidence. Commissioned writer for New Law Journal, Solicitors Journal and Expert Witness Institute. Born and bred in Liverpool. Married, 2 daughters 15, 18, One autistic, abused by the state, and a huge present, and future cash cow. Email finolamoss@gail.com www.youtube.com/watch?v=586TEFU-vr0

NHS vultured by the Health and Social Care Act 2012: Part 1.

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It took the Juggernaut of a Coalition government to pass a Bill so vague/complex it could not be properly debated and was longer than the 1949 Act that created the NHS to destroy it.

Even David Cameron apparently did not know what the Health and Social Care Bill entailed.

To get onto our statute books it needed to be all things to all people.

It was a PR feat extraordinaire.

Full of anomalies and contradictions, in breach of the rule of law, as, like the Mental Capacity and Carers Acts, it had to disguise its real purpose.

And such confused legislation is now restructuring our NHS.

Parliament rubber stamped structures and ‘laws’, woven under regulations by various newly created executive bodies, whose purposes were made to look beneficent but have resulted in the vulturing of our NHS and with it our nation’s health and welfare.

The Act put total control in the hands of one all powerful, newly created NHS England, which by clause 1 replaced the Secretary of State in providing our health services.

NHS England is now headed by Simon Stevens, advisor to Tony Blair, who then spent 10 years as an executive of US Universal Health Services.

The Commons Public Administration Select Committee, attempted to ascertain the level, if any, of accountability, NHS England has to the Secretary of State, but its Chair Bernard Jenkin could only comment;

‘’Vast amounts of money are involved here, £95.6 billion in the case of NHS England alone, and it is simply not acceptable that there is no clarity or clear accountability for that kind of public expenditure… The architecture is not meant to be reminiscent of the film The Matrix where doors open on virtual worlds which are insulated from reality and hidden from the public and from those meant to be accountable for them.”

http://www.politics.co.uk/news/2014/11/10/it-s-official-no-one-knows-who-is-in-charge-of-the-nhs

Section 75 focused on creating tendering which increasingly goes to private companies, allowing vital cash from a limited NHS budget to be poured into the most profitable services, leaving less for  key services like A and E and GPs .

http://www.nhsforsale.info/privatisation-list.html

With NHS England oversight, outsourced since 2016 Clinical Commissioning Groups have £95 billion and increasing per year, to effectively give away to ‘any qualified provider’ .

NHS Foundation Trusts, the backbone of the NHS, are being converted into private companies, with previous trust directors the new owners of public money, charged with provision of services, and their own salaries, all behind the closed walls of ‘business confidentiality’, immune from Freedom of Information Act Notices, their meetings held in secret.

Did our NHS need such dangerous, complex, radical surgery ?

No .

The Commonwealth Fund a private US foundation reporting in 2010 on health systems ,using its own and other international data involving 20,000 patients in 11 developed countries found our NHS one of the most cost effective systems with excellent access to care.

Only New Zealand was cheaper but here 1 in 7 missed out on care because of costs, and only Switzerland spent 35% more but gave better access.

In 2014 their report ranked our NHS highest overall on quality of care, access , efficiency, equity and healthy lives.

That same year the Office for National Statistics showed the UK spent the least of the G7 countries on health care 9.2 of GDP ranked joint bottom with Italy.

But, whereas, we see the NHS as our protector from birth to death, our successive governments have seen it as a huge money spinner.

Socialinvestigations revealed a list of interests in health and care services of the MPs and Lords voting on the Bill .

225 MPs- 78% conservative, 145 peers- a quarter conservative a sixth labour had a recent or current interests/ connections in health care .

Their investigations revealed a tangled web of offshore companies, donations, consultancies, directorships and shares held in companies likely to profit from the Bill’s privatisation agenda.

http://socialinvestigations.blogspot.co.uk/p/blog-page.html

Our most needy really are now at the mercy of our most greedy, free from scrutiny or accountability.

St Andrews Healthcare, Northampton, Acadia and Universal Health Services.

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The Chief Executive of St Andrews Healthcare earned £500,000 in the year up to March 2016 including a £99,000 bonus.

Despite the CQC rating St Andrews as ‘requiring improvement’ in September 2016.

http://www.thirdsector.co.uk/chief-executive-st-andrews-given-99000-bonus-last-year/management/article/1408564

His predecessor was paid £325,000, down from £375,000 on complaints his was a charitable appointment.

He received a total of £653,000 for all his roles in 2012/13.

http://www.independent.co.uk/news/uk/home-news/charity-chiefs-653000-pay-reignites-row-8891812.html

95% of all funding for St Andrews is public NHS and as a registered charity it pays no tax.

45 million of NHS money was provided to build a 110 bed school at St Andrews in 2014.

This school now commands 20 million + per year tax free with an average of £200,000 per ‘pupil’.

Social services requested my daughter be sectioned to St Andrews in 2013, refusing to acknowledge her faecal  impaction despite one in 2007 and the trigger of a 48 bruise restraint .

A secure ward bed in St Andrews can command up to £12,500 with a sliding scale down per risk scale.

So worth a staggering £15,500 per week per patient tax free.

Yet, we are told there is insufficient money to fund the NHS.

Nearly a quarter of our NHS budget is already spent on Mental Services and Theresa May has  promised more.

In view of the profit available, with no outlay for equipment,few skills,  drugged encagement, cheap itinerant staff, a captive impossible to complain audience and no measurable outcomes.

Is it any wonder the mentally ‘disordered’ are harvested. And even more public money ploughed into such ‘treatment’.

A Dispatches documentary in March, ‘Under Lock and Key’ campaigned to ‘release’ those in St Andrews to ‘ community living’ .

But most ‘Community Living’ is now owned by US Acadia and Universal Health Services whose former chief executive is Simon Stevens, chief executive of NHS England.

And, as seen in this blog, their services similar to St Andrews and they own their own private hospitals.

And residents are mainly held under the MCA, not MHA, so have no rights to reviews, or MHA tribunals and parents are gagged and often excluded from care so could not expose or even know what was happening.

MCA residents would be held under Deprivation of Liberty Safeguards and unlike MHA section have no Art 5 right to a jury in a Coroner’s Court if they die.

‘Under Lock and Key ‘, as with Panorama’s Winterbourne View, can only service to move NHS and Social Care money to privatised to these monopoly  privatised owners like the Universal Health Services ,Cambian provision for Thomas Rawnsley .

https://finolamoss.wordpress.com/2016/08/19/winterbourne-view-vital-questions-that-remain-unanswered/?frame-nonce=9492493c45

Services will not change with them in so called ‘community living’.

A removal to their private hospitals can happen at any time.

And with enforced medication and 24/7 surveillance, the resident is still under lock and key as evidenced by record numbers of Deprivation of Liberty Safeguards.

https://www.nursingtimes.net/roles/learning-disability-nurses/learning-disability-ward-closures-to-begin-in-two-regions/5085306.article

Until our no rights, for maximum profit, drug them and lock them up mental services are changed nothing will improve.

All appear to be fighting for mental cash cows, not wondering how they can actually help their physical and behavioural needs with the huge amounts of public money they are paid.

Mathew Garnett was apparently restrained 11 times in 5 months in St Andrews but it refuses to disclose individual ‘treatments’ because of the Data Protection Act.

I found the comment below from a mother with a daughter in St Andrews it shows the ‘treatment’ and lack of accountability in the mental services industry.

Beverley posted on 24/4/17

I can talk from first hand experience.

I am grateful to C4 for exposing the terrible things that go on in St Andrews daily.

My daughter suffered verbal and mental abuse from the staff and management at St Andrews.

On one visit to see my daughter she had 2 black eyes a carpet burn to her face and bruising to her groin which the director of patient services described as a ‘accidental kick by a member of staff ! she had been taken to the floor by her neck and the staff member had to be pulled of her by security.

I tried to report the injuries to Northamptonshire Police, but they told me there where cuts to their police force so couldn’t do it.

I then reported it to my home police force who took up the investigation with the Northamptonshire Police (after they had apologised to me).

The staff member was arrested but it could not go to court as no notes had been kept on file of the incident by staff members .

My daughter was put into isolation for days on end, I was not allowed to speak to her and was told by the manager of the ward that she would not be allowed out until she had shown some remorse. She had been placed in a padded room without proper heating or any toilet facilities and was given a bowl to use as a toilet. She was not allowed outside into the fresh air for 6 months because she was told she needed to get her levels up.

I bought her a Ipod for her birthday she only saw it once, before staff took it from her and she never saw it again. I complained and they said it was lost (whilst in the care of staff).

On almost all the the visits to see my daughter i found her heavily sedated, unable to make sentences and dazed. Again I complained but was told she had asked for the drugs.

I requested the notes from the ward rounds but this stopped when i found out that my daughter was constantly been drugged or restrained.

When I asked why they had been stopped the doctor told me it was at the wishes of my daughter. I was at my wits end and approached anyone and everyone who i thought could step in including a formal complaint to the CQC.

They visited St Andrews unannounced and found they had failed on 8 accounts with notice to urgently improve on: Staff training, including restraints and administration – patients files were all mixed up and serious conditions relating to a patients health had not been recorded.

The wards were filthly with needles spilling over the top of needle bins, ligature points everywhere for self harmers to attempt to take their life, not enough staff on duty to patient ratio with patients having to monitor each other.

A lack of knowledge about the Mental Health Act and Human Rights Act. ( i asked a manager a question on the mental health act which he informed me he would have to read up and comeback to me).

I wrote again to the CQC and met with them to again relay my fears for my daughter however, they were reluctant do to anything as they stated

“St Andrew’s was one of the biggest in the country and do close that down would mean a major shortage”.

I was astonished by this disclosure as it meant that all was lost.

I took my daughter case to the Parlimentary Ombudsman in the hope that they would take my case on – I found out that they will only take on 3% of hospital complaints.

I quickly found out why – firstly they sent me to NHS England to fight my daughters case, only to learn 3 months on that they had been in error in doing this as they should not have sent me to NHS but that it was the PHSO – Parlimentary Ombudsman that should have been doing the investigating – The whole process was a shambles from start to finish.

They told me i could not bring a case against St Andrews but that my daughter should do it – I constantly had to remind them that my daughter was 16 and sectioned under the mental health act so was not able to put forward a complaint – she wasn’t allowed to have a pencil let alone write a complaint.

I was told by one of their directors that if i didn’t agree to it being a complaint from my daughter then they would not continue with the investigation. This I told them was black mail.

It was at this time that i approached my MP Ranil Jayawadana with a complaint into the PHSO but he made promises but did not carry them through.

My daughter finally made an escape from St Andrews when a member of staff gave her a massive overdose of her medication – they released her to another hospital very quickly once they discovered their error.

Since leaving St Andrews she has thrived and is doing well. She is approaching her 2nd year of college and she is loving life.

I say to all non believers – St Andrews is a cruel, evil place which should be shut down.

Please consider stepping in to the shoes of someone with mental health issues or that of their parents – seeing someone you love subjected to the daily torture handed out at the hands of St Andrews will soon make you think again – i know, my daughter lived it and so did i and my family

http://www.theartsdesk.com/tv/dispatches-under-lock-and-key-channel-4

 

 

‘Best Interests’: no choice, no oversight, no accountability, the sad story of MN.

hitler-quote lie

A residential placement, commissioned by the LA and/or local clinical commissioning group is invariably in an ‘incapacitated’ person’s ‘best interests’.

The Court of Protection is not given a choice it is forced to rubber stamp the executive’s decision.

It doesn’t need to be proved a placement is in a particular individual’s best interests.

The Court of Protection does not explore a placements previous outcomes nor insist on a trial period.

Thomas Rawnsley’s ‘best interests’ were served by living in the newly built Kingdom House, 80 miles from his family were he died at 20, with no evidence of how his provider intended to cope with his state created trauma , autism and Downs Syndrome .

The court his family nor Thomas were given any other alternatives.

And the Court of Protection will not interfere with a care provider’s provision as shown in N v ACCG and Others [ 2017] UKSC 22

http://www.familylaw.co.uk/system/froala_assets/documents/1566/N_v_ACCG_and_Others__2017__UKSC_22.pdf

Where a mother’s simple requests to assist in her 23 year old disabled son’s personal care and have him visit his family at home were refused by his provider supported by the Clinical Commissioning Group, Official Solicitor and Local Authority .

It took 4 QCs and their barristers and solicitors and 2,029 pages, of which 1,289 were expert evidence, for the Supreme Court via Lady Hale to decide;

It was a case in which the court did not have power to order the Clinical Care Group to fund what the parents wanted’.

So if the Supreme Court of the Land does not have the power who does ?

It would appear for profit monopoly care providers are above the law.

And, surely, the hundreds of thousands spent on this action, would have gone a long way to providing this extra funding, which was more than available from the £8,000 + per week paid for the washing, dressing, feeding, drugging and wheeling out of this young man by basic wage shift staff.

This judgment is a very disturbing precedent from the highest court in the land allowing ever more commercially aware providers to assert ‘cost implications’ as an excuse to avoid what is clearly in a person’s best interests .

At 8, MN had been taken into care and placed in a childrens home despite Bracewell J stating in the care proceedings;

‘‘The closeness of the family is striking. The physical care and attention to safety has been exemplary. All the family have been involved with every aspect of minute by minute care and supervision. There is no doubt that love and commitment have been shown to these children to the highest degree.”

We can only guess at the devastating effect on  a vulnerable autistic child of being torn from his five siblings and parents love and all he knew, and placed in an institution with strangers.

We can only guess at the effect of his continued maximum profit‘care’ and unchecked enforced poly pharmacy medication.

We are told at 18 after 10 years of such ‘care’, on the LA applying to the Court of Protection MN now had

“severe learning and physical disabilities together with autism and an uncommon epileptic condition resulting in frequent seizures and risk of sudden death.
( a known side effect of long term neurological medication)

And a nurse had to be available at all times to administer emergency drugs to MN if needed

MN had poor muscle tone and uses a wheelchair.
( Autistics in institutions  are often confined to wheelchairs as unable to walk safely due to the effects of medication,  long term anti psychotics causing complete suppression of the neurological system and painful muscle spasms )

https://finolamoss.wordpress.com/2016/10/22/harmful-history-of-neuroleptics-antipsychotics/?frame-nonce=4df0b17c59

He was doubly incontinent.
(The possible side effect of  Risperidol and faecal impaction? As with my daughter)

MN has the cognitive ability of a child aged less than 1 year.
( How could this be properly assessed, in view of his autism and medication, anti psychotics causing brain shrinkage and learning deterioration )

He has no speech ( there are many mute autistics, and trauma causes loss of speak, as does the inability to move due to medication ) but can express his feelings by facial expression, sounds and gestures.

MN needs help with feeding as he is vulnerable to choking; ( Medication causes the suppression of all muscle use )he requires 2:1 care with his personal care and accessing the community. Overall MN has to have his carers nearby at all times and during the night MN has one sleeping member of staff and one member of staff who stays awake to look after him.”

Since his 18th birthday MN had lived in a care home which we are told by an independent social worker provides, “a safe, settled and supportive environment”.

And parents have “for the time being” accepted that this is where he should stay, although it is clear that their ultimate aim is for him to come and live with them.

The parents wished for MN to come and visit them in their home six miles away .

An occupational therapist had assessed the home and concluded  it could accommodate MN and his wheelchair for a short visit.

But trained carers would have to go with him, be allowed into the home to settle him down, and wait outside while he was there. One of the carers would have to be trained to administer emergency medication if required.

Only the care home manager and her deputy were willing to do this, “the rest of her staff fearing that the parents would not co-operate, would interfere with the care they provided for MN and would be aggressive and intimidating towards them”.

This,  seems improbable, as these staff are effectively itinerant and powerless and do what they are told. That is if these never proved allegations were true.

Hence, the care home was unwilling to facilitate MN’s visits to the family home, which would require alternative carers to be trained and paid for.

MN’s mother also wished to be allowed to assist the care home staff with his intimate care when she was visiting him.

And an independent social worker thought that MN’s interaction with his mother in this way could form an important element in his quality of life, provided that she was able to work with the staff.

But the care home was unwilling to allow this, partly to fears as to the mother’s co-operation, but also because the parents had declined an offer of the necessary training in manual handling

The CCG’s position was that it was not in MN’s best interests for his mother to be involved in his personal care or for him to have visits to the family home.

The staff were unwilling to facilitate this and the CCG was not prepared to fund alternatives.

The Official Solicitor for MN supported the CCG’s position.

The parents disputed this position and the reasons for it.

In particular, they claimed that the care home’s fears about lack of co-operation were unwarranted and  the mother was now prepared to undergo the necessary training

At 11.32 pm the day before the CA hearing , counsel for the local authority emailed the other parties to give notice of her intention to argue that the Court of Protection had “no jurisdiction” to decide the issues.

The matters the parents wanted were “not on the table” given that the CCG had said that it was not willing to provide.

The CA agreed, as did the Supreme Court, the later holding that the matters were not ‘jurisdictional’ but intended by the MCA.

So at 8 MN left his home and family forever .

His fate, the fate of many autistics, learning disabled and behaviourally challenged

And these numbers with the multi billion pound bounty on their heads can only  increase.

And whilst COP will not order a mother helping with care, or home visits, it came to light via an investigation into the COP by the HL Select Committee in 2013, that autistic’s healthy teeth were being removed on COP order in secret to avoid self-harm.

http://www.dailymail.co.uk/news/article-2534300/Doctors-order-autistic-mans-teeth-removed-Decision-taken-closed-doors-stop-self-harming.html

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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.

https://finolamoss.wordpress.com/2015/10/06/stephen-hawking-and-the-difference-between-capacity-and-competance/?frame-nonce=e8ba772698

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.

https://finolamoss.wordpress.com/2015/03/03/standard-capacity-assessments-stephen-hawking-would-fail-without-his-box/?frame-nonce=e8ba772698
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.

https://finolamoss.wordpress.com/2015/05/12/law-on-capacity-to-assess-or-not-to-assess-that-is-the-question/?frame-nonce=e8ba772698

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.

head with staircase and tightrope walker digital illustration

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Goldrush Part 4. Pointless ‘Assessments’ and the person subject to COP is never represented.

noface

A court date will be set in a months time and your home will be occupied by the state regardless of the affect on you and your vulnerable loved one .

Two social workers will arrive in your home every week for over an hour.

Your GP will be sent a detailed remit of what is needed in his s49 report and state the local authority have concerns about your care.

He is given the option of not actually examining should this prove difficult and will normally rely on medical records and you for information.

Information already existing and shared illegally in a Multi agency Safeguarding Hub with all agencies.

You will, on threat of court proceedings, have to provide paper details of months of DLA payments before legal aid can be granted to the lawyer appointed by the Official Solicitor’s Office to be the ‘incapacitated’s litigation friend, to purportedly represent him.

As family carers are cast as abusers, they can’t instruct a solicitor to represent  their loved one, even if they had the funds, as now a conflict of interests exists between them and their child/spouse/parent.

It is impossible to find the numbers of Official Solicitors appointed or the public cost, as they are not subject to Freedom of Information Act Notices.

https://www.whatdotheyknow.com/request/appeals_under_s21a_mental_capaci

And there is no guidance in the MCA or in any supporting materials, as to how a litigation friend should discharge his duties in the court of protection.

At common law his duty is to represent the person subject to the proceedings and relay as clearly as possible his wishes to the court. RP v United Kingdom at paragraph 76.

But in the practice now created by case law, the Official Solicitor’s representative function, has been replaced by an investigatory one, which supports what the court and local authority believe is in his ‘client’s’ ‘best interests’, rather than what his client actually wants.

As there are many cases which show that an ‘incapacitated’ ’s litigation friend hasn’t positively advanced, or has conceded matters, he would not have done, if he were representing him, as is his duty in law as his next friend.

So it appears, in a court, statutorily created to protect the vulnerable, no one is actually representing him or arguing his case.

But instead, arguing what the court believe to be his case and what they believe is in his best interests.

So ‘substitute decision’ making is the norm in breach of Article 12 of the United Nations Treaty on Rights of Disabled.

https://finolamoss.wordpress.com/2015/12/03/the-convention-on-the-rights-of-persons-with-disabilities-be-their-voice/?frame-nonce=d0f83434c0

Nor, unless the family can afford it is anyone defending family carers and arguing their case.
.
https://academic.oup.com/medlaw/article/24/3/333/2733263/Litigation-Friends-or-Foes-Representation-of-P

So an Official Solicitor will be another visitor.

And again you will provide the information on behalf of your loved one, but, as you are cast as abuser, and the OS role is now investigatory, he will be suspicious and note matters supporting the LA case, unhygienic/disorganised home, lack of care, signs of risk.

He will then write up his witness statement without approval from either you or his ‘client’.

A psychiatrist and psychologist will be jointly instructed and remitted to assess your loved ones capacity and psychological and emotionally wellbeing.

Again you will provide the information and again there is likely to be little engagement with the  assesse.

A local authority carers assessment of  family members will need to take place, although this can’t be forced but you’ll think it can because  it is contained in a Court Order.

Carers Assessments  involve a very intrusive, detailed investigation into the effects of caring on all members of your family , disclosure of all medical records and psychological assessments.

A two hour continuing NHS financial assessment will also need to be factored into your busy schedule.

But it is  rare for funding to be provided for support in the family home, despite the same assessment of need allowing on average £80,000 per annum for such support in private residential care.

An assessor of your loved one’s possible benefits will also need to visit.

During this deluge of bureaucratic, pointless scrutiny, you will need to maintain a spotless, tidy house and care meticulously for your no doubt distressed family member, without support .

You cannot complain, or even voice irritation .

Complaints about provision are not considered and stayed once court proceedings are applied for.

And will be evidence of your inability to work with professionals putting your loved one at risk the basis of the s48 application.

You are trapped, worn out, with no help and no where to turn and have court documents from two  sets of solicitors to attend to.

kafka9666295._SY540_

 

 

Gold Rush Part 3. Lawyers, first hearing, allegations need not be proved.

Lynching_Statue

Court of Protection solicitors usually pay for Charity endorsement and Law Society Mental Capacity Accreditation.

They increasingly work for large Alternative Business Structures which market themselves as old style solicitors but are commercially aware corporations with scant competition and no personal liability .

Fees and services are therefore fairly standardised.

These lawyers are also contracted by the government to act as Official Solicitors.

To attend the hearing to remove your loved one in less than 24 hours you will be billed £500 over the phone and informed that this is half the legal aid rate.

On arrival at court you meet your lawyer who liaises with the LA solicitor and tells you that if you agree their Orders, you can avoid the police arriving to remove .

So faced with no option you agree to anything.

If you do not, the judge will usually order what the LA want anyway.

What you are unlikely to be told is that removal of your loved is unlikely at this point, as ‘incapacity‘ has not been assessed, an Official Solicitor not yet appointed and Deprivation of Liberty Safeguards not yet in place.

Your protestation that  allegations of parental incapacity, abuse and neglect are out of context, unfair and/ or lies is ignored.

It would appear such allegations do not need to be proved.

In contrast to care proceedings where s31(2) Childrens Act provides it must be proved that a child is suffering or likely to suffer significant harm on the balance of probabilities, there is no such requirement for an adult under the MCA and courts have stated Parliament did not intend there to be one.

Rarely, if ever, will the court hold a specific fact finding hearing on allegations made by social services .

Such a failure of natural justice/ due process can only aid false, unfair accusations against families now that only residential care is funded.

A Local Authority v PB and P, one of the few judgments on fact finding, saw the removal of an ‘incapacitated’ adult from his mother on the basis of her alleged inadequate care.

Charles J noting ‘there are a number of ways in which the best interests issues can be put to the court. Some of them may well involve proceeding on the basis that historical disputes of fact can be left as that and as matters of disagreement .(As they were in this case.) In other cases, that would not be so’.

But no reported cases indicate what these ‘other cases’ might be.

So we haven’t a clue when/if fact finding will be deemed necessary as a separate exercise or even as part of a ‘best interests’ checklist .

And there is no judicial, or practice direction, or indeed any guidance.

So at best, fact finding is ad hoc and rare in today’s clogged up courts where judges are under a statutory duty to have regard to the costs of proceedings.

The allegations upon which hundreds of thousands of families have been torn apart for life, assets seized and liberty lost have never been proved.

Attempts at forcing proof of social services allegations are case management issues and any appeal against refusal is limited to a local High Court judge, and  LA and OS legal costs may be payable.

So for now your loved one is still at home, but you have to allow social workers into your house at least once a week, a s49 GP physical assessment, capacity, psychological and financial assessments and NHS Continuing Care Assessments and Carers Assessments.

The evidence gathering continues and the next hearing date is set.

 

 

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 visited by their loved one for life, is in the hands of a single care worker.

Their opinion on not knowing you or your loved one is paramount.

In their imprisonment your loved one will receive no family concern, spy cameras, possible complaint; no oversight ‘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 upon them, deemed in his ‘best interests’ once he is only ‘reasonably’ believed incapable of making the decision, by a commercially aware, for maximum profit service .

Yet, this is under the MCA subject to taking ‘all practical steps’ to see if the person is able to make the decision and the least restriction action  to be taken, with regard to that persons known wishes.

How will it 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.