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.
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 ..
No one survives a MCA capacity test