The Law on Capacity
The Mental Capacity Act 2005, purported to empower.
The Act, presumes, everyone, is capable of making a particular decision, until, there is evidence, on the balance of probabilities, by a prescribed assessment, that, they are not.
As a capacity assessment, removes a person’s fundamental freedom to choose.
It should only be undertaken, if ‘incapacity’ is suspected.
And, must only be of a person’s ability, to make a specific decision, at the time that decision needs to be made, in his best interest.
This assessment, or, suspicion of incapacity, must not be based, on a person’s mental condition and/or presentation.
Further, the Act’s overarching principle provides;
‘A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success’
S1(3), and, see also s3(2) MCA.
This requires, as much as possible , to be done, to maximise a person’s capacity to make the particular decision.
And, to avoid Article 12 EU illegality, ‘substitute decision making’, a joint decision, should be attempted before capacity is assessed.
Assessments, should take place, in a familiar place, and, be by a familiar person.
With the assesse, in optimum physical, and emotional health.
Unless in an emergency situation.
An assessment , can only, relate to a person’s capacity, at any particular time.
Capacity to make, a decision, can be regained.
The Mental Capacity Act, is the only Act, as far as I am aware, that allows, the state, to remove a person’s autonomy.
Prior to 2007, the High Court had such power, but, only if, necessary, in a person’s best interest, and, it was used, exceptionally.
Decisions of the autistic, and vulnerable, were generally made by them, with the help, and, protection of their family.
The Reality Since 2007
As early as year 9, parents, will be introduced to a person from ‘Transitions’, at their child’s SEN review.
This person’s function, will not be explained, other than, autistics/ learning disabled, find ‘transition’ to adulthood difficult, and, they are there to help.
At 16, your child’s full time school, is no longer funded.
Despite SEN ‘Education’ funding continuing until 25.
Instead, independent living, and employability skills are taught, and, a base building provided.
Most children attending a special school, will automatically, be deemed ‘incapable’, of making decisions, as to their welfare, and, finances, by social workers, and GPs .
As these assessments, are neither time, nor decision specific, and, usually based on their conditions of autism, and/ or, presentation, they are illegal.
Even if, a formal capacity test, is undertaken, it appears, it need not be completed, as required by the Act, as the standard Local Authority Assessment Form provides;
‘The assessment should end if the person is unable to progress through the functional test. For example if a person cannot understand the decision they will not be able to retain it, weigh it in the balance or meaningfully communicate a decision’.
All that needs to happen, is a person be asked , do you know why, you need your medication, or, do you know why you need to pay your disability allowance into your own bank account.
And, show no understanding, and, their reaction noted.
So, effectively, once a person has, an’ impairment of mind’, which the Act makes non- exhaustive, and extensive,Unless, they are a good communicators, with knowledge of modern procedures, and medicines, they are doomed.
It must also be considered, how many non- SEN teenagers, would be able to answer such questions.
As this standard LA test, is neither time, nor decision specific, needed, and, can only, if abandoned so early, be based on a person’s condition, and/or presentation, it is illegal under the Act.
Protection of your child’s ‘rights’,will be tick boxed, by the appointment of his own Independent Mental Capacity Advocate.
Whose only function, is to explain what is happening to him, and his rights.
Quite what these rights are, is unknown, as the incapable, do not appear to have any under the Act, other than, to consultation.
And, your child’s ‘Advocate’, despite his name, cannot take part, in the decision making process.
At 17, you will be consulted about your child’s, away from home for life placement, but, at 18, it is ‘inappropriate’ for you to make decisions for him, and, you have no right to do so.
As your child, lacks the capacity, to make his own decisions, adult social services, will make them, and, decide what placement is, in his ‘ best interests ‘.
If you object, to your child living ‘independently’, or, are unhappy with the chosen placement, the LA will make an application to the Court of Protection, as your child is ‘incapable’ of choosing where he lives.
If you insist he is capable, and wants to live at home, the court, will declare, your child ‘incapable’ of all decisions, past, present and future, and, that it is, in his best interests, to live in whatever placement, the LA provide.
All his future decisions, will then be dictated by his Care Plan.
Even down to how many baths he has, when he takes them, and, how he is cleaned.
Subject to reviews, this will be, for the rest of his life.
This is his ‘independence’, and, empowerment.
The need for a Deprivation of Liberty Order each time a person is locked in his room or supported living facility is not required by the MCA.
So, despite the Magna Carta, Human Rights Act, Equality Act, Disability Discrimination Act and United Nations Convention, millions, now, and in the future, will be encaged without due process.
And, Supported/independent living, is now, the only policy, and support provided by Social Services.
The House of Lords Select Committee on Mental Capacity Act 05 report
Extract from Hansard on no monitoring of substitute decision making by care provision.
98. There were also concerns that a decision-maker could assume too much power, and sometimes on the basis of questionable legal authority.
Sheffield Safeguarding Adults Board pointed out that
“once a person has been deemed to lack capacity to make a decision they become vulnerable to the opinion of the decision-maker and when those decisions are not reflective of their best interests it often leaves them powerless to challenge“.
This was echoed by other witnesses, who expressed concern over the use of the ‘general defence’—the term often used to describe sections 5 and 6 of the Act (Acts in connection with care or treatment and Section 5 Acts: limitations)—which provides protection from liability for carers and others to carry out acts in relation to a person who lacks capacity.
The pre-legislative scrutiny committee foresaw problems with these sections, which were at the time entitled ‘the general authority’.
They worried that it would wrongly give the “impression that the general authority would be assumed by a single individual who would then take all decisions on behalf of an incapacitated individual”.
In response, the Government removed the term ‘general authority’ from the Bill, but concerns have persisted since implementation.
Now irrelevant as DOLs replaced by Liberty Safeguards, 2019, which allow LA and Care Company to do anything in best interests and avoid liability for such action.
Professor Phil Fennell and Dr Lucy Series described the general defence as providing “tremendous discretionary power” which was “not subject to any routine monitoring”.
Liberty expressed concern about the very wide range of decisions which could be made under these sections, combined with a “worrying lack of oversight”.
And these decisions, are being made on a business efficiency model, in secret, by large private monopoly care/ supported living provision, with no oversight by the courts, only the Adult Services Managers, employed by the LA, who commissioned the service, and, would therefore, be liable for its inadequacy, so a huge conflict of interests.http://ukhumanrightsblog.com/2011/11/17/severely-disabled-mans-care-plan-is-not-a-deprivation-of-liberty-says-court-of-appeal/