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.

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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.
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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.

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

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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.

The new Gold Rush- Enforced Residential Care. How it happens. Part 1

GOLD RUSH 2

Does anyone really believe successive governments care about protecting children and the mentally disabled?

Do they really believe they are worried about our mental health, our NHS and us not being burdened with our parents care ?

If so, why do welfare/mental services continue to deteriorate and how will even more public money help ?

No, such state propaganda is a PR smokescreen and fund raising device to disguise the real purpose- the provision of monopoly privatised, enforced, unaccountable for maximum profit ‘services’.

Allowing the siphoning off of as much public money as possible to their mainly foreign owners.

These multinationals and venture capitalists know, that only in the UK can they find guaranteed and increasing public income, and the opportunity to make huge profits from cheap itinerant ‘care’ of captive drugged consumers with little accountability as the LA/HSC commissioners also employ the providers overseeers.

https://finolamoss.wordpress.com/2016/04/07/venture-capital-and-nhs-care-services-our-most-needy-feed-our-most-greedy/?frame-nonce=7eb302f6ff

Such Goldrushes will ultimately apply to most public services.

https://finolamoss.wordpress.com/2017/02/01/the-final-social-solution-state-enforced-corporate-services/

Lets deal with how the’ mentally vulnerable gold’ is mined.

Those at risk of being ‘incapable’ are targeted by a £433 million army of local safeguarders.

https://finolamoss.wordpress.com/2016/05/19/how-will-433-million-carers-act-implementation-money-be-spent/?frame-nonce=7eb302f6ff

The mental, physical health and wellbeing of family love, reduced to ‘unpaid care’, is assessed by Carer Assessments.

And confidential conversations with GPs, social workers, support groups, neighbours are shared with any relevant party and entered on a Multi Agency Safeguarding Hub Data Base.

https://finolamoss.wordpress.com/2016/06/17/the-carers-act-creates-an-adult-protection-service-all-seeingall-knowingall-powerful/?frame-nonce=7eb302f6ff

Agencies and any ‘support’ will be charged to secretly find ‘safeguarding issues’.

https://finolamoss.wordpress.com/2014/10/14/gathering-evidence-from-social-care/?frame-nonce=b2a9023392

This agenda of information gathering is ruthlessly pursued and increasingly such professionals/ carers are employed on an itinerant, performance package basis by the company providing residential services.

So a conflict of interests exists between their ‘support’ and their continued employment and bonuses.

Because of this’ Arbeit macht frei ‘modus, you will know nothing of the real purpose of the state’s ‘support’ until the Court come knocking on your door with a s 48 MCA application to remove your loved one the next day.

The LA/HSCT’s legal department have been sent the safeguarding issues- unhygienic, disorganised house, insufficient/inappropriate clothing, food, bedding, slipping hazards, derogatory comments, mentally unstable, unfit carers spun and placed, out of context, in social worker and GP statements, all to show your loved one is ‘incapable’, abused and at risk.

A s48 application must be issued out of the  High Court of Protection in London so the LA will have already applied there ex parte in secret without any challenge .

Under the auspices of this High Court of Protection Order, all matters can now be dealt with by the local County Court.

Parents/spouse/child will be beyond shock at such a lynching and systemically unable to correct or reply to any allegation. And without a clue as to how to stop the removal of their loved one the next day.

Even if living on state benefits, they cannot get legal aid. And if they could afford advice who would they trust, and what is their status as abusers in a court protecting their loved one ?

The person you know and love is already owned by the State and you cast as his abuser.

Family will not be allowed to represent their son/daughter/spouse/mother/father.

Even if that relative has signed a Lasting Power of Attorney saying they can or they are their public guardian, as there is now a conflict of interests between parent and child, husband and wife.

Their voice is a state Official Solicitor appointed by the Court who they have never met.

Social services may offer ‘support’ to enable you to go to court but now you know it can’t be trusted .

The Nightmare has only just begun.

 

 

 

The precarious legal nature and creation of Deprivation of Liberty Safeguards.

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In an age of  gay marriage affecting 1.6% of the population, transgender toilets and a vague Supreme Court pronouncement on wheel chairs on buses, our Local Authorities  encage over a million and increasing.

Before the Court of Protection was created, you had to be convicted of a crime, or be so mentally unstable you were sectioned to lose your liberty.

Now, it is increasingly being removed from anyone deemed ‘incapable’ under a vague MCA test for life and not  as a punishment or for treatment .

And worse still all aspects of their existence controlled.

So what law gives a court such God like power ?

s 4A MCA states;

This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

But that is subject to the following provisions of this section, and section 4B.
D may deprive P of his liberty if, by doing so,

D is giving effect to a relevant decision of the court [or Protection] … D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty)

If it is not to give effect to a court of protection decision nothing in the MCA allows deprivation of a person’s liberty, even where they lack capacity unless it is necessary to provide life-sustaining treatment or to prevent a serious deterioration in their condition and this is the only practical way in the circumstances. See s4 B.

So there we have it, if the Court of Protection  decides it is in your ‘best interests’ you lose every decision for life.

The Deprivation of Liberty Safeguards came into force in 2009 in the 2007 Mental Health Act, as an addition in Schedule A1 to the 2005 Mental Capacity Act.

Created solely on the excuse of the incompatibility between English Common law, (not the MCA/MHA), and Article 5 of the European Convention on Human Rights ( right to liberty) revealed by HL v UK, the ‘Bournewood’ case.

The creation of DOLs enabled a procedure, whereby people, who lacked ‘capacity’ under the MCA, could, if deemed necessary in their ‘best interests’ be lawfully detained in a hospital or care home.

HL v UK held England’s common law detention on the grounds of ‘necessity’ was incompatible with Article 5 of ECHR

http://www.communitycare.co.uk/2005/02/07/the-bournewood-case/http://www.communitycare.co.uk/2005/02/07/the-bournewood-case/

The autistic gentleman HL, could not be detained under MHA 1983 as he was autistic and as non verbal deemed incapable of being able to consent to treatment.

HL’s legal loophole has since been remedied by the MHA 2007, definitively making behavioural disorders like autism, mental disorders, and then using the MCA to assess ‘capacity’ and decide ‘best interests’.

http://www.communitycare.co.uk/2008/11/11/mental-health-acts-1983-and-2007/

So, it would appear HL v UK, ironically, gave the UK government the excuse, to watertight its legislation to remove the liberty of the ‘incapable’, because it was in their ‘best interests’ thus avoiding any ECHR challenge on lawfulness.

Article 5 litigation in the ECHR does not appear to inquire into the reasonableness and merits of the process by which liberty is removed, only that it is ’ lawful’..

 

Care Providers now apply For Deprivation of Liberty over 0.45% of Citizens, success rate increased 380% since 2013/14.

DOLS PICTURE

Adult Protection Departments appear to be using  the excuse of ‘safeguarding’ to facilitate ever more efficient/profitable ‘care’.

Remember  DOLs’ horrific effect, removal of any objection as to when, or what you eat, who you see, where you live, when you go out and where and even when you wash and how.

Forced medication and encagement usually as for profit for life.

Once you are deemed MCA ‘incapable’, all that is needed by a private provider to do all of these is a rubber stamped DOL.

195,840 DOLS applications were received by councils from care providers in 2015-16.

The highest number recorded since DOLS were introduced in 2009, representing 454 DOLS per 100,000 adults in England.

As by current care providers, they may not include new removals by the Court of Protection.

So these may need to be added.

We need statistics for the actual number of those in state ‘care’ subject to DOLS per se.

The statistics show large variations between regions .

The North East had almost three times as many (900 per 100,000) compared to London (319).

The remaining regions between 400 and 500 applications per 100,000 adults in 2015-16.

105,055 successful applications were reported in 2015-16, compared to 62,645 in 2014-15.

An increase of 68%, following a 380 % increase in successful applications between 2013-14, and 2014-15 (from 13,040 in 2013-14).

Of the 105,055 applications in 2015-16, 76,530 (73 per cent) were granted and 28,530 (27 per cent)  not granted.

The ones that  were not granted, are likely to be due to the fact that legally the facet of care was not a deprivation of a person’s liberty.

The North East has the highest rate with 665 applications per 100,000 residents.

This is more than two and a half times the next highest region, the South West (258).

The other eight regions display some variation, with the South East having the lowest rate of 179 per 100,000 residents..

Although the proportion granted was relatively consistent across most regions, only 44 per cent were granted in the South West, whereas 86 per cent were granted in the North East and London.

http://content.digital.nhs.uk/catalogue/PUB21814

Councils are unable to cope with the number of applications and backlogs have resulted in some urgent applications, not being signed off for seven months, rather than the seven days required by law.

Official figures released last week by NHS Digital revealed the DOLS case backlog hit 101,750 in April 2016, up from 75,000 the previous year.

http://www.communitycare.co.uk/2016/09/28/urgent-deprivation-liberty-cases-signed-seven-months/?utm_content=buffera1e8d&utm_medium=social&utm_source=pinterest.com&utm_campaign=buffer
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Local Authorities have resorted to the use of desktop assessments, to grant deprivation of liberty orders in a bid to clear a backlog of more than 100,000 referrals.

And DOLS trainer and a best interests assessors raised concerns that desktop assessments risked losing a key check and balance in the process.

http://www.communitycare.co.uk/2016/10/04/councils-turn-desktop-assessments-dols-backlog-hits-100000/?utm_content=buffer116d2&utm_medium=social&utm_source=pinterest.com&utm_campaign=buffer

A class action in May 2017 by LAs to force government to fund DOLs system was dismissed.

http://www.communitycare.co.uk/2017/05/03/councils-lose-court-battle-deprivation-liberty-funding/

So, an unworkable MCA system, confirmed by the Supreme Court in the Cheshire Case, means thousands and increasing are being held captive and forcefully medicated illegally.

So much for Magna Carta, the Rule of Law, Separation of Powers and Civil Rights.