Mental Capacity Act, Best Interests, Removal to State Care, and Human Rights.
Once, it has been assessed, that a person lacks ‘capacity’ to make a decision.
The MCA provides, any decision on their behalf, must be, as thought, the incapacited would have made it. s4.
But, with the huge caveat, of paternalism-
Only if, it is thought to be, in that persons, ‘best interests’.
This further removes, a deemed ‘incapable’s’ autonomy
Already illegal under Art 17 UN Directive as ‘substitute decision making’.
This is why, charities for the elderly, advocate, joint decision making.
Charities, for the mentally disabled/autistic do not.
Nor, do the courts.
Instead, what the incapacitated decision would have been, is overridden, to whatever the state believe is in his ‘best interests’.
The House of Lords select committee report revealed,
‘families and carers painted a depressing picture of their exclusion from decision making’,
let alone, the incapable’s exclusion.
At best, families, are consulted, but have no right, to be part of the decision making process.
Nor do Independent Mental Capacity Advocates.
A person’s ‘best interests’, is left to a social services /NHS best interests assessor.
With no independent voice.
Or, consideration of, the conflict of interests, arising from the profit from state private provision and, the LA policy of only funding such care, and, the incapacitated person’s wishes, and interest.
The ‘best interests’ assessors, if disputed,abrogates ultimate responsibility, to the courts.
But, the court of protection work load, since implementation of MCA, has increased by 60%, whilst staff decreased by 30 %.
There is no non means tested legal aid for fanilies,
And, as the HL report, the legal profession, nor apparently, anyone, fully understands the Act.
But, is it appears to be being deliberately misinterpreted, as the drafters knew, it would have to be,
as the Act, as drafted is unworkable, as shown by the recent Cheshire Supreme Court judgement on Deprivation of Liberty.
An official solicitor, will be appointed to represent, the ‘Incapacitated’.
As the incapable’s family’s interests, will usually be deemed to conflict with the incapable, as their neglect/abuse/incapacity will usually be alleged .
This Official Solicitor, is anything, but independent, as paid by the state.
And, receives information only, from professional agencies, instructed by the Local Authority .
As, his client is incapable of instructing him, he cannot take his instructions.
Therefore, an OS, cannot fulfil his duty to his client, and, the court, to obtain a fair hearing.
Illegal blanket assessments, and capacity tests, are used.
And are systemically, impossible, to challenge.
The act, even exempts an expert from liability, if he reasonably believes, a person is incapable.
But not, if he uses, an illegal test, or does not comply with the MCA, his duty to the incapacitated, or the court.
Additionally, the Act requires that in making the decision,
‘ regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action’.
As, the usual decision to be made, is removal from home, to a state private institution.
And, as LAs have now, on the excuse of cost cutting, removed effective support at home.
It will not be difficult to show, that such care and support, cannot be ‘effectively achieved’, without removal.
So, the state’s withdrawal of support at home, and, within the community, aids the ‘best interests’ decision, they seek.
State private profit providers, can then claim, the large amounts of money, the disabled, and their families, are entitled to, under the Chronically Sick and Disabled Act 1970.
And worse, are being allowed to do so, for basic, unaccountable services.
And the incapable serve user, cannot complain.
The LA adult social services care managers oversee them.
But, there is a conflict of interests, between this role, and their commissioning role.
As if the service is inadequate, the LA will be liable.
Adult Services Managers, have now replaced Adult Social Workers, except, for the enforcement process into state care.
As with all legislation, the MCA, must be interpreted, to give effect to the incapacitated human rights, of privacy, and a family life.
State removal, away from family, and 24 hour supervision, is the ultimate interference with theirs, and their family’s human right under s 8.
And, an incapacitated person, via a next friend, could apply for a prohibitory injunction under s8 Human Rights Act, to prevent his removal.
But, how would the incapacitated, or, his family know this.
And, be able to enforce it ?
The Official Solicitor, paid by the state, will be in favour of removal.
The family member, has very limited legal aid, and, the risk of the LAs costs.
And, will have to find a lawyer, willing to take on the state, and, be able to pay him
Danger of EHCSs, and, Abuse of MCA Capacity for Adult Service Funding
So let us explore, what appears, to be the Local Authorities practice, in relation to capacity assessments, since, the lucrative, ‘independent/community living’, away from family living industry was created.
Anyone, suspected of ‘incapacity’, all autistic, learning disabled, and, mentally disordered.
Including, potentially, anyone in need of ‘special’ education.
Funded under Education, Health, and Care statements.
Which unlike SEN, make the social services responsible for ‘protecting’ a child’s ‘welfare’.
So now, all ‘special needs’ children, are deemed in need of the protection.
Discriminatory of parents and children,in breach of the Equality Act, and,s 8 Human Rights Act.
Strengthening a disabled’s status, as a ‘child in need’, under the Children Act, see my article NLJ ‘The Disability Trap’.
EHCS, also allow care, health, and educations distinct roles to overlap.
And, their funding to be mixed and transparency even more obscured..
SEN/EHCS, do not apply to private schools.
So, the rich, can avoid, state intervention, and, are, allowed, their legal rights.
ECHS, do not fund schools after 16.
Instead, schools are replaced, by ad hoc education packages,consisting of skills for independent living, until 25..
These, combine support at home.
And, these ‘education’ providers, unknown a family, will be charged to notify social services, who approve them, of any ‘intervention issues’.
At 18, Adult Services fund everything.
As, the only LA policy now, is life in for profit, private residential care units.
All decisions are removed from the disabled, and their family by the MCA 05.
By showing ‘incapacity’ to make decisions.
So, the LA will insist, a capacity test is carried out, before, providing any adult services.
So social services, will suggest, your young adult child see a psychologist.
This ‘seeing’ includes a capacity test, but, you are unlikely to be made aware of this and there appears, no duty on the local authority to inform you.
It can also provide, evidence of emotional abuse/neglect, to cut you out of your child’s life.
If you ask for clarification of such assessments, and/or feel them unnecessary, the Local Authority, will apply to the Court of Protection, for an interim order under s 48 Mental Capacity Act 2005.
This application will be served, 24 hours before the court hearing.
Social services witness statements, in support, are not on oath, so not subject to the Perjury Act.
Matters to support this court intervention, can include any reported hearsay, from any source, care workers, GP, educators etc.
The first you may know of these ‘concerns’, will be 24 hours before the hearing.
No one is under a duty to discuss concerns with you first and under a tightly prescribed, managed service will be told not to..
Despite Social Workers and Mental Capacity Act Codes of Conduct, and, the Human Rights Act.
The Local Authority will ask the court for a list of expansive orders.
Including, any assessment and/or inspection, they wish.
If you do not agree, you may be warned your child could be taken that night.
So, you are given little choice.
This, is all an abuse of the MCA, and its five overarching principles, and its Code of Conduct.
The MCA provides, ‘capacity’, must be assessed specifically, in terms of capacity to make a particular decision, at the time it needs to be made.
The LA, will allege incapacity, in respect to the following decisions,
To litigate the proceedings
To make decisions about where they should live
To make decisions about the care they receive
To make decisions about the contact they receive from family members.
Clearly, only the first two, are in fact particular decisions, the others involve several particular decisions, should they have a bath, wash hair, brush teeth, depilate their arm pits etc.
Similarly, family members, are many decisions, to see mother, father, sister, brother, granny.
Remember the MCA provides an assessment should only take place,
‘At the time it (the decision) needs to be made’
But these decisions do not need to be made, at this, particular time.
Just because a person is 18, and now funded by adult services, a capacity test per se, is not allowed by MCA.
In relation, to the last three decisions, the disabled person, will have been making these decisions, all their life, whether to have a bath, sleep in thier home, see their granny.
How can they suddenly become incapable of making these decisions, and, the LA make them for them for them, under the MCA?
How can an assessment be justified, when these disabled, have already made these decisions in the past.
And by making them, shown their ‘capacity’ to make them, just because LA funding, requires it?
In relation, to the remaining decision, capacity to litigate, no one, unversed in law, would have such capacity, and, in any event, it is not be necessary, if the other capacities are present.
The MCA, was not drafted for the convenience of funding, only, independent living provision at 18, and enabling this by illegal removal from the family home.
The MCA was drafted, to protect a person, by allowing another person, to make a decision for them, in the least restrictive way, and, as they thought, that person, would have made it, in that person’s best interests, if thought, that person, had become in capable of making that particular decision, and, it needed, to be made.
The MCA, was not drafted, to declare people ‘incapable’, and, allow all their future decisions to be made for them, for profit.
Or was it ?
The new Gold Rush- Enforced Residential Care. How it happens. Part 1
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.
Such Goldrushes will ultimately apply to most public 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.
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.
Agencies and any ‘support’ will be charged to secretly find ‘safeguarding issues’.
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.
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 viewed by their loved one for life is in the hands of a single care worker.
No family concern, spy cameras, possible complaint; no oversight of ‘care ‘other than that of 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 deemed in his ‘best interests’ by a commercially aware, for maximum profit ‘care’ service .
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 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. )
(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 ?)
(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.
Gold Rush Part 3. Lawyers, first hearing and allegations need not be proved.
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 protestations 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 adults 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 statutory 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.
And as forcing proof of these is a case management issue, any appeal is limited to a local High Court judge and LA/OS 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.
All above articles from https://finolamoss.wordpress.com/