Stephen Hawking, and the difference between ‘Capacity’ and ‘Competence’

Physicist_Stephen_Hawking_in_Zero_Gravity_NASA

The Mental Capacity Act defines capacity as,

the ability to make a decision’.

Whilst competence is defined as

the ability to do something successfully or efficiently’.

Competence is a far more expansive creature.

It is the ability to execute a decision, after it has been made .

If we run the two together, at most, the definition of capacity, would be,

‘ the ability to make a decision, successfully’.

Not to be indecisive, like Hamlet

But indecisiveness is excluded from incapacity under the Act.

The Act, was not titled, The Mental ‘Competency’ Act.

Despite this  the MCA capacity test requires a person to understand the reasonably foreseeable consequences if he were to actually execute his decision once made.

This requires far more, than the an ‘ability to make a decision’ as  ‘capacity’ is defined by  the Act. As it requires the competence to perform the decision.

This is a person’s competency not his capacity .

Such a distinction may not affect the assessments of delirious patients, or, the alzheimer confused, to consent to medical treatment. .

But, even here, the capacity test allows draconian and dangerous removal of any patient’s autonomy.

And prevents any questioning, of medical diagnoses, and/or treatment.

Were Ashya King, an incapable adult, he, nor, his parents, could, have availed themselves of laser treatment, and, he,  might now, be severely disabled.

http://www.dailymail.co.uk/news/article-3148042/Cancer-patient-Ashya-King-six-parents-arrested-taking-abroad-pioneering-treatment-UK-given-clear.html

The  MCA Code of Practice worrying  provides a  denial of  medical or mental diagnosis to be possible evidence of   incapacity to consent to treatment.

Jack Nicholson, in One Flew Over The Cuckoo’s Nest, would, therefore, be deemed incapable, of consenting to his treatment, because of his denial of his non existent mental disorder.one-flew-over-the-cuckoos-nest-movie-poster

The MCA Code gives little guidance on assessing capacity when considering proactive decisions.

Stephen Hawking ’s capacity to decide to go into space, or out into the community, without his wheelchair..

Or, an autistic adult’s decision to go out into the community alone.

Are decisions both have the capacity to make but not the competency to perform.

If, they were to insist, they did have such capacity, this would be evidence, this would be evidence, they failed to appreciate, the consequences of their decisions, and, were therefore under the functional assessment,incapable.

Although Professor Hawing’s incapacity, could, not be caused by an’ impairment of the mind’, as unlike an autistic, he has a voice box.

As the Act, likes to have its cake, and eat it, it states, reckless decisions, per se, are not evidence of incapacity.

The MCA capacity test is not about capacity, but competence, safeguarding, and control.

And discriminates against the disabled by using, a disabled’s person’s inability to execute a decision, against him by conflating, incapacity with incompetence.

Parliament appears to have modelled, this capacity test, on the test used, to assess a child’s competency to give evidence.

As section 53(1) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) povides:

A person, is not competent to give evidence in criminal proceedings, if it appears to the court, that he is not a person, who is able to understand questions put to him as a witness and give answers to them which can be understood [section 53(3)].

Having lectured, this for twenty years, I can attest, it is a minefield of semantics.

Case law, arguing, it is satisfied, if a child can distinguish, between ‘fact and fantasy’ ie they know teletubies are not real.

Santa Claus?

And, a child must appreciate, the importance of telling the truth, and the consequences in court. as opposed to a social occasion.

Truth is truth?

Suffice it to say, the competence of a child, is a vague, subjective exercise, for a judge to assess, on questioning each particular child.

So one can but wonder, why, Parliament, chose, a similar blunt, subjective test/ tool, to potentially remove, anyone’s autonomy for life in most cases.

Could it serve the real purpose of the MCA ? ie removal of consent to care and treatment for profit

The Mental Capacity Act, can make anyone, a prisoner of the state.

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The Mental Capacity Act 2005 not only qualifies, as the most socially draconian Act in modern history but also created its own court.

Why?

To purportedly protect the rights of the vulnerable.

A surprisingly laudable reason for a government.

Particularly, with no media pressure,  scandals, petitions, or campaigns that  warranted any legislation, let alone such a monster of oppression.

Whilst now 8 years  on,  there is huge pressure, and  urgent need to protect our vulnerable from the State care deemed in their best interests by the MCA,—– a plethora of  scandals, Winterbourne, statistics that 3 learning disabled, die needlessly per day and concerned relatives, if not  excluded, resorting to spy cameras.

If this Act were about protection it is a catastrophic failure.

So, why was the cost and time of this Act, thought so necessary, it was pursued for years  and implemented subject to review, despite two years of House of Lords objections?

And why did its need ignore the fact that  the inherent High Court jurisdiction with already, Enduring  Powers of Attorneys, the doctrine of necessity and The Office of Public Guardian had already  adequately protected the vulnerable,  for centuries.

And still do in the rest of the world but the UK.

Far from protecting the vulnerable, the Act has served to encage them, and make them, far more vulnerable and more crucially a source of private profit.

So what were, the purported reasons for  the Act ?

Amazingly,  little.

Government concern, that due to the ‘unstructured’ nature of  protection, decisions vulnerable people could make for themselves were being  made by others.

And, if   a person became  incapable of making a decision,  others should be prevented from making this decisions without the vulnerable’s, considerable involvement.

The fact that today,  such an implausible respect for an individual’s autonomy, has through the subversive implementation of the Act resulted, in the total removal of a vulnerable person’s autonomy, sadly, reveals the government’s real agenda.

The very concerns, the government sought to remedy, are now given flesh, by the Act.

It  is being used, not only, not to involve vulnerable in decisions  concerning them, but it also, allows LAs/ care providers, to make all the vulnerable’s decisions for life.

Incapacity, is needed for the jurisdiction of the Court of Protection.

It is the gateway, to an individual’s  every future decision being made by the state.

Allowing a vulnerable adult, unlucky enough to need  ‘support DEEMED INCAPABLE.’to be made a captive consumer of any state care, without reprieve, escape or complaint.

A person’s worst nightmare.

Every decision made for you, by strangers, whose overriding interest is profit .

And, the MCA, WAS deliberately drafted, to allow potentially, anyone’s, decisions to be made for them.

As MCA provides, any state agent, care/support worker, social worker, nurse, GP, psychologist, counsellor, alzeimer friend, even neighbour, can assess whether an individual is ‘capable’ of making a decision.

If  A PERSON appears, to them, to be mentally ‘impaired’, as a result of a non exhaustive, all embracing list- learning disability, mental health problem, brain injury, dementia, alcohol or drug misuse, effects of treatment/medication or in fact any other illness or disability.

Not only is the list of ‘assessors’ effectively anyone,

the reasons for  ‘incapacity’ is limitless.

Already, psychiatry/mental health is farcically extensive the USA, having created  375 mental disorders, diagnosed on a symptoms based subjective basis.

How vague, and subjective are these extensive impairments ‘learning disability’, ‘any other illness’ and the ‘side effects of medication’ ?

The Act  has been drafted to allow anyone, who comes into contact with a member of the public,  to assess them as incapable of making decisions.

Beyond terrifying, and amazing is the  power, it gives the state and their informers.

The ability to remove anyone’s autonomy by stealth and deem them a non person.

See latest rulings from Mr Justice Charles on Deprivation of Liberty Orders

http://www.lawsociety.org.uk/news/press-releases/ruling-highlights-rights-of-vulnerable-people-in-deprivation-of-liberty-hearings/

Worse than  Orwell’s ‘1984’ monitors.

The state ‘us’ is given the right to assess the ‘them’; without the ‘them’ even knowing,  and the ‘them’ are not even given the right to challenge the assessment.

And the courts, then remove all a person’s decision making rights, by illegal, blanket, general assessments, in a secret court.

The Act is not  protecting our ‘vulnerables’ rights but  removing them.

For NHS/LA private profit.

And, as the state decides, who is ‘vulnerable’  and it could be you.