The Mental Capacity Test- The Fool of Law ?

Rule of Law is the basis of our freedom and democracy.

It is our protection from state exploitation and tyranny.

It provides our laws must be certain.

Our main and most authoritative source of law is an Act of Parliament.

Parliament must therefore ensure Acts are certain.

That means sufficiently well drafted to be implemented without the need for too much discretion and/or subjectivity on behalf of the executive and/or the judiciary.

If  not, the state will be given too much unauthorised ( not sanctioned by Parliament), unpredictable power over an individual.

An Act, historically, commenced with a paragraph describing its ‘sprit and intendment’, known as a Preamble.

The Preamble’s function  was to explain the purpose of an Act to assist interpretation and application.

Preambles are now rare as thought historic and superfluous .

But The Mental Capacity Act commences with 5 overarching principles in the style of a Preamble but drafted as section 1.

Worse still this section is the main substance of the Act and its overriding principle the agreed by Parliament giving of autonomy to an individual so that decisions he was capable of making were not made for him but it is written in the style of a preamble.

And then the Act dangerously in breach of the rule of law gives no  further specific provisions enacting the main purpose of the Act in s1 principles.

But instead places complete reliance on a lengthy  Code of Practice.

This is poor drafting as it leaves the Act vague and therefore ripe for executive bureaucratic discretion and gives too much unfetted power over the individual.

From a general s.1 embedding autonomy and making a capacity assessment a last resort.

The Act  says no more on these crucial matters other than in the Code of Conduct.

Leaving the purpose of the Act and how it should be implemented to a Code of Conduct.

The  effect of this  is, there no law to  implement the purposes Act in s1.

Instead, s 2 and 3, move straight to define what a person has to prove, to avoid having their ‘capacity’ removed.

By anyone’s standards, a strange way to draft an Act promoting autonomy.

Section 2, is stage one of the capacity assessment.

‘Capacity’ is rather unhelpfully defined, in the Code of Conduct,

as ‘the ability to make a decision’.

Stage one of the capacity test, consists of a finding, that a person has,

an impairment of, or disturbance in, the functioning of the mind, or brain’.

And gives a non-exhaustive, expansive list of examples. mental illness, learning disabled, now 375, including intoxication by alcohol and effect of medication.

But avoids any  definitions/explanations, of these listed classes.

Or the blood sugar, intoxication levels needed to impair or disturb, or indeed, any definition of impairment, or disturbance, or the degree needed to satisfy the test.

This level of vagueness, expansiveness and inherent subjectivity, can only be deliberate..

And, one wonders how anyone, could manage, not to fail  stage one.

Is there any evidence, that anyone has ever passed it?

This means section 3, stage two will almost always be automatically moved on to.

This undefined impairment/disturbance, must be sufficient, to cause the person to be unable to make a particular decision, at the relevant time, when it is needed.

A person is unable to make a decision and therefore, ‘incapable’ if he fails any one of the following;

Firstly, if found that he,

cannot understand information given’.

‘Information given’ is ‘defined’ in the Code of Practice,

‘as information relating to the nature of the decision’.

This leaves the assessor and us to speculate, as to what this ‘information’ might be, and how it is to be imparted to the person who is already suspected of being mentally ‘incapable’.

Consider, for example, the information, that needs to be given to  the suspected ‘incapable’, to make the usual decisions, required in a standard court capacity order;

Which consists of, whether they want to represent themselves in the Court of Protection, where they want to reside, who they want to see, and, whether, they can decide all their own personal welfare decisions.

This  involves the need to impart, a potentially limitless amount of information to the person being assessed capable of making them.

And not only does the assessor need to impart all this information,

S3 (2)   also requires him, to present this information,

in the best way to maximise a person’s capacity’.

So, all this must warrant a vague, impossible, Herculean feat.

But it gets even worse, the poor assessor, is then given, the  even more difficult/impossible task of judging if, a person has  understood all this information.

How can an assessor possibly to this ?

How can he possibly  judge what another person has understood ?

Particularly, if that person has communication difficulties.

If a person says yes, I understand, what it means to act for myself in the court of protection.

Unlikely per se, even if he had already experienced it, and assuming, he had been provided with all the information, relating to the decision, whatever that might be.

Yes, I know all that is involved in looking after my personal welfare, and, have considered, all the information relating to all these decisions, another imponderable.

Will this be sufficient, for an assessor, to be satisfied, a person has indeed, understood, the infinite nuances of such information?

Remember, the assessor, is not allowed by the Act, to make judgements, solely on a person’s behaviour or presentation.

If a person, passes that part of  the test.

How can only be imagined.

The assessor must then decide, that the person is able, to retain, all this mass of information,

long enough to be able to make a decision’.

The Act, does not  stipulate for how long, nor why, this  is specifically made necessary.

As presumably, a person normally indicates his decision, as soon, as he has understood the information, in answer to the question, that requires that decision.

And presumably, the ability to understand this question, by necessity, would need the retention of this information for the required time.

But not only is the assessor charged with assessing the length of ‘memory’ required.

The assessor has to then go on to decide if a person’s   ability,

to use and weigh up the information in making the decision’, is sufficient.

Wow.

This will involve the assessor having the skills, and information, even experts, in the plethora of areas, involved in the decisions, might not possess.

Inter alia, statistics on success of litigants in person, caring for yourself, over being cared for by the state, the psychological effects of seeing certain people, or not, the advantages of a particular residence now, and, in the future.

And, how can an assessor, possibly judge what should be ‘evaluated’, in such decisions.

The assessor himself is unlikely to be able to. Who would?

And, more crucially, whether  the  person with communication difficulties, has ‘evaluated’ them properly?

On what objective criteria, will an assessor’s judgement be based, and, what is to be evaluated?

Such an evaluation, would require an objective evaluation of a sea of information, and unknown future imponderables, and expert knowledge.

But, even more crucially, such evaluation, relies on, and requires, that the person being assessed, has extremely good communication skills, to be able to impart to the assessor, how he evaluated his decision.

How could a person, suspected of mental incapacity, with normally very poor, if any, communication skills, be expected, to explain his evaluation of all this required information?

This must therefore, on analysis, be found to be a farcical, unworkable assessment.

And, grossly unfair on the assessee.

Particularly as in law he is only forced to be assessed because of his disability.

Yet, such assessments, have already removed the autonomy of over a million, with a potential for millions more, for life.

Assessments, that do not even satisfy superficial scrutiny, are removing, our citizens rights to make their own decisions.

Worse still, the Care Act 2014, now weakens the definition of ‘capacity’, to having ‘substantial difficulty’ being involved in specific decisions.

And, this ‘substantial difficulty’ test is the same as the ‘capacity test’ definition in the MCA.

So anyone can assess, and the ‘assessment’, is effectively totally subjective/unworkable.

Terrifying confirmation, that the state is determined, to remove the autonomy of anyone they want to.

Two Acts, provide and dilute, the ultimate weapon of control, and, create a  means to use anyone, as a commodity for private profit.

Has anyone ever passed such a capacity/ ‘substantial difficulty’ test?

comment from internet 2019 below

I had training with a consultant recently which said from a BMI of 13 or less she would never consider them to have capacity ..

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Click to access GUIDETOMEDICALRISKASSESSMENT.pdf

It-Is-Not-Torture-Small

No one survives a  MCA capacity test

 

Law on Capacity, ‘To Assess or not to assess, that is the question’.

Royal-Mail-Stamps-RSC-HamletThe Mental Capacity Act was, supposedly, passed to empower  the vulnerable, to make their own decisions.

A ‘capacity’ assessment , must therefore,  be a measure of   last resort , as it removes a person’s autonomy in respect to a particular decision.

And, in any event, should only be  undertaken, as and when a decision, ‘needs to be made’.

This is the law as provided by the Act which states

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

If a person can with help, make a specific decision,he will not be incapable of making it.

And a capacity assessment and removal of that decision from him will be illegal.

so how does fit in with the latest court ruling 2019, of ‘fluctuating    capacity’, being sufficient to remove all decisions from the incapacitated under MCA ?

iT IS ILLEGAL as not authorised by MCA, which states that capacity must be maximised at time of assessment

The Act also provides that prior to an assessment everything  practicable  must be done to enable a person to make the decision himself.

This requires, that the person proposing to assess, knows as much about the assessee as possible, to know how  a person’s capacity can be maximised.

So basic capacity facilitators, such as the assessee’s ease, a familiar environment, no illness, or distress ,should be ensured and the assessor should  not be a stranger.

And, the decision if possible, be made jointly with the suspected incapable, before the dynamic is changed, by a formal capacity assessment, which by its nature removes the incapable from the decision making process.

The Act shows the importance of protecting a person’s autonomy as it is made the first overarching principle of the Act;

‘A person must be assumed to have capacity unless it is established that he lacks capacity’

In addition, the MCA Code of Practice states in para 4.4 provides,

An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general

Yet everyone now breaches this law by declaring people ‘incapable’.

So the first thing to be established is what decision,

Does it appear a person has lost the capacity to make?

And what is the evidence of this?

If a person has all his life, decided, what to eat, where to live, and who to see.

And is still doing this, then, he is not having difficulty making these decisions.

So why then, need his capacity be questioned, in respect to these decisions, as it is now, daily by Local Authorities, particularly, if he has a learning disability, or is autistic ?

The Act also states, there must be evidence of a difficulty making a decision, at the time the decision needs to be made ?

Again, Local Authorities, do not appear to need to explain,  why they have decided a decision ‘needs be made’,  at a particular time, other than to fund services  at 18, and/or, due to exaggerated/non existent safeguarding concerns.

Any presumption of incapacity, before a test, is illegal, and, ipso facto excludes, a person from the decision making process, and prevents the steps  legally needed to maximise capacity.

Without these the test is unfair, illegal..

And the empowering nature of the act subverted.

Its raison d’etra ,thwarted.

Merely because a particular decision is unwise, or other, than one, the assessor would have made, or makes care easier, does not make a person incapable of making it.

And the incapacity, must be directly linked/ connected  to an ‘impairment of mind’.

If a person, has already been making, the same decisions all his life, and, there is no new impairment, for example he is autistic, or learning disabled from birth , then, why would he suddenly, be unable to make these decisions ?

And, how could they be due to an impairment, he had had when he was making them .

If, indeed, autism can be classed as such an  ‘impairment’.

And, it must be remembered, that just because a person is unable, or unwilling, to make a decision,this does not mean, they are not capable of making it.

Hamlet was not incapable.

The reality is, that the mental health system is awash with people, who are assessed as ‘incapable’, for no other reason than they  are labelled with one of the 375 mental disorders now available.

And most do not even engage with their assessment, and their assessment is generally an illegal blanket ‘incapable’ of any decision assessment for life.