A Life without Choice , let alone, ‘Independence’

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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’.

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

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.

https://finolamoss.wordpress.com/2015/07/07/autistic-parents-have-no-rights-and-the-private-corporate-parent-is-unaccountable/

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.

A Horrifying Abuse Scandal

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“.[157]

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”.[158]

In response, the Government removed the term ‘general authority’ from the Bill, but concerns have persisted since implementation.

Professor Phil Fennell and Dr Lucy Series described the general defence as providing “tremendous discretionary power” which was “not subject to any routine monitoring”.[159]

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/

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The Mental Capacity Act in practice -emancipated or insentient?

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8 years ago, the Mental Capacity Act was, supposedly implemented to provide a  ’ legal’ framework, to empower, and emancipate,   the incapables’ ‘decision making’.

But has it?

No. See House of Lords Select Committee report.

The Local Authority strategy, to remove all suspected ‘incapables’ to private for profit state care, increased rapidly, after 2007.

Studies show, these removals   were at first,  often illegal, without reference to the Court  of Protection. http://www.communitycare.co.uk/2012/10/30/where-social-workers-are-going-wrong-on-the-mental-capacity-act/

Whereas, now the Court rubber stamps  removal.

As analysed in previous posts, it is functionally, very difficult, to legally comply with s1 of the Act, and, empower the vulnerable.

And this has not happened, as the Act is being used to remove all decisions from the vulnerable and their parents.

From this, we can only  conclude, the real reason for the Act,  was to enforce  private profit institutional  ‘care’ for life away from family and effectively any real community.

Such care, would have huge benefits, for  the government, and LAs.

The LA, gets the old, disabled, and vulnerable off their books, eradicating the need for adult care.

Social workers, are used as enforcers, and then, replaced by care managers, who merely oversee private provision they have commissioned and would be liable for if inadequate.

LA budgets, do not then, have to be used on continuing   home support.

Private profit care, benefits the government,   as,  public money,  available, to the disabled and their families, under the Chronically Sick and Disabled Act 1970, can instead be used by venture capitalists, and businesses, to make profit, from social care,  fuelling  economic growth.

LA budget cuts, purporting to reduce the UK deficit, actually increase it, by payment of huge sums to private care providers .

The market for such care, is  ever extended, now to those which learning disabilities, and behavioural problems, to maximise the potential consumer base.

Capacity/ability to make a decision is assessed routinely, and covertly.

The Care Act 2014, implemented last month, dilutes ‘capacity’, to ’substantial difficulty’ in being involved in decisions.

As   assessments   are   routine, they are  based on age, or label, and  therefore MCA illegal, but who, or, how, could anyone complain?

This approach is highly discriminatory, and, marginalises, and stigmatises   certain groups of people, by questioning their ‘decisions’, and, removing their right to make them.

The state can then enforce any care, and medication, they want.

For those living in residential care, rather than for emancipation, the MCA  is being used, to justify tick- boxed regulation, and unchecked, perfunctory at best, standards of ‘care’, and, defend practioners.

The Supreme Court   decision Cheshire West   [2014] UKSC 19, graphically illustrated, how functionally unworkable the   MCA is, in relation to the many deprivation of liberties, that take place daily, in private care.

And caused   a bureaucratic nightmare, which will do nothing to empower the vulnerable, but simply increases the box ticking of already overburdened, understaffed, underpaid care workers.

It has been translated operationally, to a Review of the Care Provision annually of the Deprivation of Liberty Safeguards with a Relevant Registered Person, who is generally not a family member but similar to an IMCA trained and appointed by a charity, but paid for by the state and the Adult Services. Most Care Providers have computer software to deal with the matter as part of their ‘best interests’ check list.

As,   with deprivation of liberties, any attempt to actually apply the Act, to the myriad of individual daily decisions, in residential care, as is required by the Act, would also be functionally impossible, particularly, in our, all for profit, zero hour care factories.

Usefully, the court practice is to remove a person’s capacity to make all future decisions, despite this being illegal under the MCA.

This assessment, to add weight to it will often be by a psychologist, pursuant to section 48 MCA.

But can be anyone.

And a s48 MCA application is granted to the LA on merely showing they suspect a person incapable.

The standard assessment order will decide, if a person has the capacity to litigate, make decisions as to where he lives, the care he receives, and the contact he has with members of his family

These are not decision specific,   and, other than for LA funding, often, need not be made, so  illegal under the MCA.

As mentioned in the post, ‘Standard Capacity Assessments Stephen Hawing would fail’, the standard LA assessment, is also apparently illegal.

And, does nothing to maximise capacity, other than tick a box on ease, comfort of circumstances, and, appears not to   encourage joint decision making.

We have no figures of how many, if any, pass the capacity test.

If an assessor, were to find a person   capable, he is proving his pay master LA, who suspected incapacity, and, applied to court, wrong.

The standard Record of Assessment,   will also certify, that a person, is unlikely to regain capacity, condemning him, to never, being allowed to make a decision again.

Providing  care providers, with a blanket incapacity assessment for all future decisions, again illegal.

Worse still, capacity, appears to be being equated with sentience.

As shown in Cheshire West judgement.

Where the court of appeal, and minority of the Supreme Court, held that a person can only be deprived of his liberty, if he has the capacity to understand and object to his situation, ie be aware of it.

Even Lady Hale eluded to ‘incapacity’, being equal to unawareness, by her words

An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty.

A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty’.

Care workers are encouraged to believe, these very vulnerable scared lonely people with communication issues are actually incapable of any awareness or feeling.

As a support worker, horrifyingly  remarked to me ,

‘Would Issy know what was happening, if 5 strangers removed her from home ?’

The state is now allowed by the subversion  of the MCA, to create  the perfect commodities.

And,  the perfect   victims.insentient

 

Illegal MCA and Capacity Tests, and Lucrative Vegetables.

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The Mental Capacity Act was drafted to protect and empower.

Instead, it is illegally being used to remove all the rights of the deemed ‘incapable’.

To obtain a capacity order, all a Legal Authority needs is a box ticked by anyone, normally a GP,  that they ‘suspect’ a person, incapable.

Effectively, in their opinion, unable to retain information.

So beware of the Alzheimer tests, GPs are now paid, to provide.

Yet, if a person is autistic,  the assessor likely to be GP and/or social worker will only have physically examined, or seen the autistic, have no knowledge of autism and have based their opinion on a  discriminatory  view, of the autistic’s appearance and condition, such an assessment illegal under the MCA.

So much for the National Autistic campaigns and expensive education.

To say nothing, of all our high flown rhetoric, on diversity and equality.

The Court of Protection, on the basis of this perfunctory over sight, will then issue a  48 MCA capacity order without sight of the autistic, or information from those, he has lived with all his life.

This order will be enforced on an interim basis on threat of removal of the alleged incapable despite this being illegal under the MCA, which only has jurisdiction, if a person is incapacitated.

A psychiatrist, or more likely a psychologist,titles matter, will perform another standard tick box test, family might be consulted, but will not take part in the decision making process, despite assisting, and witnessing their child make such decisions, all their life.

Unlike his family, the ‘experts’, will not have seen, the soon to be incapacitated, before the assessment day, and, will know little of the autistic mind, or even, autism.

Actions of the autistic in the past, that show ability to want, and be able, to make decisions, like living at home, will be ignored.

We have no statistics, of how many, if any, manage to pass the test.

Assessors,are paid, chosen, and remitted by the Local Authority, who now, only provide adult services for those in, or destined for, independent living, where the maximum profit can be made, from them.

A clear conflict of interests.

If the LA fail to find an assessor, the official solicitor will then find one, and deem it even more credible, as independent.

Once tick boxed, ‘incapable’.

You’re loving, full of personality and fun son, daughter or granny, becomes a non-person.

A vegetable.

Non sentient.

Incapable, in law, of even being aware of what is happening to them.

Incapable of remembering, anything.

The perfect victim.

But capable of making millions for their encaging private corporations.

Lady Hale, chillingly alluded to this, when she said, just because a person cannot appreciate, they are living in a cupboard, does not mean, it is not a deprivation of liberty.

But can a court remove all a disabled persons rights?

Yes.

Is this, not the worst form, of disability discrimination?

Yes.

Is it not in breach of the person’s Magna Carta right not to lose his liberty except by trial by his peers?

Yes.

The Committee on the Rights of Persons with Disabilities Art 12 provides, that states party to it, UK is, should replace legislation that provides for substitute decision-making for incapacitated adults based on, ‘what is believed to be in the objective ‘best interests’ of the person concerned, as opposed to being based, on the person’s own will, and preference.

The government has so far done nothing, to repeal the MCA, but, the Court of Appeal has endorsed the Article, as having persuasive authority, as an aid to interpretation of it.

A study of the implementation of article 12 on the decisions of the learning disabled which usually includes the autistic shows it is not being implemented in UK in health or care settings.

Instead, substitute decision making takes http://www.publichealthreviews.eu/upload/pdf_files/12/00_Werner_S.pdf place.

http://www.publichealthreviews.eu/upload/pdf_files/12/00_Werner_S.pdf place.

And even without considering  Article 12, particular weight, must be placed, upon the incapacitated wishes and feelings, in determining where their best interests may lie, Peter Jackson J  Re M (Best Interests: deprivation of liberty order [2013] EWHC 3456 (COP).

So why is it happening to millions?

Profit.

OLYMPUS DIGITAL CAMERA Is this the photo of a vegetable ? Does she look non sentient?