The mental health industry is awash with captive consumers, who have never even engaged with their capacity assessment under the Mental Capacity Act.
This is illegal but this is how it happens.
Let us explore, what happens, on the day your loved one, is declared effectively, a vegetable and loses his right to make any decision. for the rest of his life.
The psychologist/ assessor, the MCA does not stipulate who can assess capacity it appears anyone can, will attend the autistic and or learning disabled young adult or confused granny.
And, most likely be ignored.
The autistic may take an interest in their name, name tag, earrings, lipstick, pen, but then go back to their DVD, computer, or, just want juice.
The assessor may say words to the effect,
’ I have come to see whether, or not you want to represent yourself in court, so that your best interests/ what is best for you in the future, can be decided by an important person, called a judge’.
The first decision, an autistic, learning disabled or granny must be found ‘incapable’ of making.
The autistic will remain unresponsive with blank eyes, that hide so much, as would the author of, ‘Through The Eyes of Aliens’ a highly intelligent, mute autistic.
Who, most likely could be found ‘incapable’ had she not written an academic book.
By now, the vulnerable person, who rarely sees people will be feeling threatened by a stranger in his personal space asking him a question, which means little to a non- autistic.
He will want to be alone to comfort himself in the autistic world, where he alone resides.
So he will tell him to go away, get out of his room and become agitated.
The assessor will leave as his training is ever risk averse and he knows nothing, of this particular autistic’s behaviour or habits.
What will happen then?
The MCA Code of Practice provides;
4.57 There may be circumstances in which a person whose capacity is in doubt refuses to undergo an assessment of capacity or refuses to be examined by a doctor or other professional.
In these circumstances, it might help to explain to someone refusing an assessment, why it is needed, and the consequences of refusal.
But threats, or attempts to force the person to agree to an assessment are not acceptable..
No one can force an assessment, unless, there are serious concerns about mental health, and the Mental Health Act can be invoked, as he is a danger to himself, or others’.
As by s1 MCA and the common law a person is capable and has autonomy over what happens to him.
But here is the shocker…
A person can be assessed as lacking capacity to refuse or agree to a capacity test.
As 4.58 Code of Practice provides,
‘If the person lacks capacity to agree or refuse, the assessment can normally go ahead, as long as the person does not object to the assessment, and it is in their best interests’.
But how, is it possible for a person, to lack capacity to agree or refuse an assessment but still have sufficient capacity to object to the same assessment ?
Isn’t ‘objecting’ the same as ‘refusing’?
This makes no sense.
And surely if he refuses to engage is this not ‘objecting to the assessment’?
He has a right to refuse/object, as he is presumed capable under the Act.
But, despite this, the Code provides, ‘the assessment can then normally go ahead’.!
But, what is this ‘assessment’ that now goes ahead and what is it based on?
And, as consent, from a capable person, must be obtained, to any assessment, this assessment would be a trespass to the person.
To say nothing of a breach of his human rights.
And, if it did go ahead, is effectively non existent.
As it, and the assessment of the person’s incapacity to consent could only be based under the MCA the functional test.
And, this, in the circumstances, as no questions have been asked of the assessee can only be based on, the autistic’s general presentation and the condition , which is illegal, under the MCA.
And where does this fit in with s1 MCA which declares that there is a presumption of capacity until proved otherwise.
And highly discriminatory so likely illegal under the Equality Act.
And, in breach of the guidelines set out in statutory form in the Autism Act 2009, which would allow a judicial review of any assessment.
Also, this could only be a functional assessment, based on, the autistic’s failure to engage.
Also based on the autistic’s condition and presentation.
Ilegal under the MCA.
In fact this test, would not even. provide evidence, of suspected/alleged incapacity, let alone, amount to a formal capacity test, accepted by the court of protection, as rebutting evidence to remove the presumption of capacity, given at common law, and in the Act.
In any event, the MCA capacity test per se, is not, applicable to the autistic mind, and is meaningless to the autistic.
And, thus proves nothing.
We also have the problem that many rightly believe autism is not an ‘impairment of the mind’ and therefore not covered by the MCA.
Yet, worryingly, and illegally, the Standard Assessment of Capacity Record to be completed by the Local Authority guidance allows for such assessments as it commences as follows;
‘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’.
To obtain a Capacity Order, from the Court of Protection, the Local Authority need to show suspected incapacity by, stating the functional test, is satisfied.
Again, in respect to autistics, the suspicion, is normally based on the autistic’s condition, and presentation, and assessments, based on such evidence, are not allowed, per se.
The guidance then continues,
The important point is to provide evidence that you have put the decision that needs to be made to the person,. and what their response is using direct quotes and or a description of their reaction.
If they cannot due to the level of impairment process the information there is nothing to be gained by continuing’.
Local Authorities, do not even have to administer the functional test, to render a person incapable.
So back to our autistic/granny being assessed, the assessor can read out the questions, be ignored, and then state in his Record of Assessment Form, that the response was silence, and render this person, incapable of making any decision for the rest of his life.
And it appears, from the guidance to the Standard Assessment Form, there is nothing about the fact, the assessment must be conducted under the best possible circumstances for the asssessee, having regard to, his state of mind, physical ease, to enable, the maximum possibility of capacity being found, as required by s1 MCA.
All the assessor needs to show, by ticking the boxes on a standard form, is that a meaningless process, has taken place.
How easily assessors earn their money.
How shocking, effectively anyone, but particularly the autistic, could lose the right, to make any decision, for life on the basis of an illegal, meaningless, non assessment.
Even, Stephen Hawking, had he not been fitted with a voice box, would, it appears, have been deemed ‘incapable’.
But not if you are autistic.