We are delighted to be able to share the first draft of the LB Bill with you all.
We are looking forward to discussing how the law needs to change.
We think there are two key things that must change. We wish to:
- make it a legal reality for disabled people to be fully included in their communities
- make it harder for the State to force disabled people to leave their homes against their wishes, or the wishes of their families.
There are five documents you can download and read (right click on the image).
Book One: About the #LBBill
Book Two: What we want the #LBBill to say
Word Bank – a glossary that explains some terms
We also have full text versions if you’d prefer.
Explanatory Notes about the #LBBill
Draft One of the #LBBill
This really is a first draft and we are seeking your thoughts, comments and feedback.
The draft will change in response to what you tell us and we will write a new version early in 2015.
Please download the documents, share them far and wide, and let us know what you think.
You can tweet us @JusticeforLB, discuss it on our facebook group, or send us an email to LBBillFeedback@gmail.com.
Our campaign has been entirely crowdsourced, we are relying on interested people to help us develop what the #LBBill should say. Please share your ideas with us about how you will collect views and input, so we can share those ideas with others.
LB Bill 
‘Make it a legal reality for disabled persons to be fully included in their communities.’
This could be easily ticked boxed by the independent living providers, by taking the disabled out to various arranged venues, and parties within and with their community.
‘Make it harder for state to force against the wishes of the disabled to be removed……
If the disabled are deemed to lack ‘capacity’ to make their own decisions, as i is increasingly the position concluded by the LA experts,rubber stamped by the courts,, then these disabled,in law will be incapable of having any wishes to give effect to, ie their wish to stay at home is therefore made irrelevant..
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Have a read of the full Bill Finola – I think your two points are addressed in the Bill
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Will do. And let you know what I think.
The main problem is the drafting of MCA 05, DEFINITION of capacity, and the LA power over that definition, which is now due to case overload, effectively rubber stamped by the court of protection, without any possibility of oversight as in secret , or even challenge.
Generally it is also difficult for families to get legal aid.
We also have the problem that at 18 parents are now forced to apply for the deputy ship of their disabled children, if they might be incapable, to instruct doctors and dentists on their behalf and gain medication or anything ie DLA.
Just the fees, for such an application cost nearly 2,000, and give no guarantee that the parents will be approved as deputies for the care of their own children.
Such an application can also be used as an excuse by LAs, who have the power, wealth and incentive to oppose such applications and obtain control of your child now 18.
Can the above be addressed in Bill?
Also, as I’ll put in a separate post, there is no check on the amount, or type of medication, that can be forced on the disabled, particularly the autistic, as this is left unchecked, to the discretion of GPs, CAMHS and even care home managers under NICE guidelines. Could that also be addressed.
As it has been shown by NHS yellow cards now for over 10 years, to be the reason for deaths of autistics and learning disabled.
Thank you for getting back to me, it is much appreciated.
best wishes.
Finola,
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Sorry to be the pedant in the corner but a nasty grammatical mistake on page 6 of book 1, second paragraph. But really fantastic work, Well done to you all. ,
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As the comments are moderated please feel free to edit out the reference to the mistake (and my own extra comma!).
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In the spirit of transparency and openness we’ll share it, thanks David 🙂
We’ll collect all feedback and improve/change in next version in early 2015 so that grammar clanger will be around for a while yet 🙂
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In our all for profit times there appears to be a fundamental flaw in the use of drugs on the mentally disordered and disabled.
As there appears, from the proposed new NICE guidelines, still no check, or even audit, of the amount, or type of drugs, used in residential care homes, and it is unclear, even if ,these regulations apply to ‘ independent’ living provision.
It would appear, the prescriptions for all the drugs used, are left to the discretion of individual GPs, and CAMHS teams, with merely an annual review, and even, NICE guidelines allow the managers of care for profit homes,to administer drugs at their discretion if needed.
All this without any independent oversight or even audit., nor permission from loved ones.
As drugs make care more efficient, and make money for powerful drug cartels, and GP’s prescriptions also lead to profit for GPs, this is a very dangerous situation for our most vulnerable,, and should have been addressed by NICE.
And with government policies to enforce away from home, family and community care for profit, via the MCA 05, for all autistics, and many care home scandals covertly discovered, show profit is being put before care, this non- oversight of drug use is very worrying.
Particularly as families are being deliberately excluded from these vulnerable people’s lives, and a recent report has revealed that 3 a day learning disabled die needlessly, and NHS yellow cards have been issued for years, due to the deaths of mainly autistic and learning disabled from such drug use.
In view of all this, it is high time, that this issue was sorted by law, could it be LB Bill. ?
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[…] most recent development in the #JusticeforLB campaign is the production of a draft Bill – the #LBBill. The Bill has been developed by Sara and Rich (LB’s family), Steve Broach (a barrister), […]
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First of all, congratulations to all those involved with the drafting of this Bill, which I fully support, and for getting it to this stage. It is a great initiative.
I’ve been through the notes and the draft Bill; I have some comments and questions, which may possibly have been covered elsewhere, so apologies if that is the case.
Anyway, these are my thoughts:
a) Clause 1 – I agree with this, as long as it includes the right ‘not’ to be included in the community in some sense e.g. to live in quiet places, or the countryside, if that is what someone might wish. (This might be covered in the intro to the Bill – ‘the most appropriate living arrangement for them’). Is ‘community’ defined?
b) Clause 4 – Para 1 states that the LA or NHS body decide what is ‘the most appropriate’ living arrangement for a disabled person, while para 2 states that the wishes etc of the disabled person is a ‘primary consideration’. Para 4 states that the financial resources of the LA or NHS body is a ‘relevant consideration’. Therefore I’m not clear where the actual sharp end of the decision lies. There also does not seem to be much of a voice for families in this clause.
c) Clause 5 – the fact that a parent can only give ‘necessary approval’ up to the age of 16 concerns me. Is there a legal reason for this not being 18? Could young people with poor communication skills not lose out here (as this is often confused with lacking capacity)? Why are families simply provided with information if it is deemed that the young person lacks capacity? (I am thinking here of those who are still quite young but over the age of 16). I also feel that para 5 could be (mis)used to withhold information from e.g. parents.
d) Clause 7 – questions about capacity may well be dealt with in other legal provisions, but this has niggled at me since the start of the idea for the LBBill. It must be embedded in the whole system of determining capacity that the particular communication modes of the young person should be fully understood and exercised by those who are making that decision. There needs to be a clear understanding of the difference between understanding and the ability to communicate that understanding, and therefore every effort must be made to ascertain whether or not a person genuinely lacks the capacity to make a decision, or may only communicate it partially etc. Also, is it specified on what grounds the decision maker can decide that the disabled person does not need to be consulted? (Apologies if all of this is covered in the MHA, which I am not familiar with [yet]).
e) Clause 8 – in general terms, I agree with this. But I have a couple of questions which came from the notes which accompanied the draft Bill. What are the current rights of families under the MHA which they could lose with these changes? Secondly, in the notes it is written ‘assuming they lacked the capacity to decide whether the detention was necessary, which we think is a reasonable assumption’. I’m not sure I have understood this – why is it a reasonable assumption?
In general terms, therefore, I would say that I feel there should be more of a voice for parents in some parts (although this is tricky – parents are not always ‘right’, of course). Above all though, it is the need to ensure that disabled people with communication difficulties don’t lose out when capacity is being ascertained.
Thanks.
#justiceforLB
#justiceforallthedudes
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HI Becky – thanks for such helpful comments on the draft clauses. To answer some of your questions:
a) this is a really important point which reflects the overall aim of the Bill to ensure that disabled people’s views, wishes and feelings are respected. We will have a think about how to reflect this in the drafting of clause 1.
b) clause 4 is designed to balance the requirement to ensure disabled people live in the best place for them with the reality that the state is not going to write a blank cheque to make this happen. So the process would be that the local authority or health body would have to work out what was best, taking the disabled person’s wishes and feelings as a starting point, and then consider the relative costs of the available options to decide which was ‘most appropriate’. Any decision which did not get this process right or reached an unreasonable conclusion could be challenged in court. Very happy to consider other ways of dealing with this problem.
c) The reason for the threshold being 16 is that this is the age when the Mental Capacity Act applies.
d) This should already be dealt with under the Mental Capacity Act – and is a problem with implementation / training / practice rather than something which requires more law (in my view).
e) On your first point – these are particularly the rights of the ‘nearest relative’ – I will write a blog post about this in due course. The problem is that these rights seem to me to be very vulnerable to being overridden. On the second point – the point we are making here is that it seems highly likely that anyone who could be ‘sectioned’ under the Mental Health Act would lack capacity to make relevant decisions and so could be detained under the Mental Capacity Act – if people with autism / learning disabilities were taken out of the scope of the MHA.
Hope this helps – and thanks again for your comments.
Steve
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[…] https://lbbill.wordpress.com/2014/11/04/lbbill-draft-one-launched/ […]
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I really love this, but am confused as to why the philosophy of people with LD being supported to remain living in their local communities, with loved ones if they wish, is not already covered by the principles of the MCA and other legislation. Ie. Best Interest principle, Least Restrictive .
The answer is often lack of appropriate resources, and I know this for sure. Families are often left to care with so little support, not because the LA does not recognise eligibility, but because there is so little quality care provision in the community. Care staff paid minimum wage, on zero contract hours leave as soon as something better comes up. Is there any wonder that Mums and Dad carry on rather than allow another 19 year old who cannot boil an egg to trapeze through the door?
Any decent practitioner would recognise the importance of ‘home’ and seek to maintain family capability. Only in extreme circumstances, does the LA ‘remove’ individuals and if they lack capacity and there remain objections, our legal framework is quite clear….a Court Application is required.
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Please google finolamoss and read my blog, as to what has happened to my 17 year old autistic daughter.
The court of protection case loads have increased by 60%, since the MCA 05 fully implemented, last August, with no increase in judges, who have complained in the media.
The effect is that they are effectively rubber stamping the LA’s deprivation of liberty applications.
The LA have a policy to put as many, particularly the autistic, as it is such a vaguely defined disorder, into independent of family living, and they use every trick in the book to do so- read my blog.
Meanwhile, experts paid by the LA, and want to continue to be paid, decide capacity. They are often also the same GPs, who prescribe the enforced drugs. Capacity, in the MCA, is deliberately vaguely defined, and it has been reported it is being too widely interpretated, see House of Lords select report .
The MCA has been designed to encage, as many as possible- read blog.
Why do they want to encage under MCA ?- perfect business model.
The consumers are captive by court order, in secret for life, family cut out easily, care in secret by zero hour itinerant workers, huge benefits claimed by disabled from NHS, education until 25, care, housing benifit etc made available to corporations who run the units.
Only review on drugs is a GP once a year, as much drugs as care managers, GP ‘s want to prescribe NICE guidelines do not regulate or check type, and amount, this left to GPs discretion see my post. Therefore these poor independent living caged, are also worth a fortune to the GPs, who will decide if they are incapable, so complete conflict of interests.
It appears even without benefits nearly 200,000 split between NHS, Education and Care can be claimed per annum but not by her family.
The autistic particularly are huge cash cows. This is why sp many are lingering in mental hospitals see Sunday Times Marie Woolf’s art last Sunday.
I have also been told tha carers are armed with ketamine guns, in independent living units to ensure the care workers saftey, I have no evidence, but then how could I or any parent find out ?
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I will definitely read the blogs you suggest.
I must argue that from a personal perspective my colleagues and I angst over making the right call regarding mental capacity and often seek a second view from a colleague where there are complexities. We are required to evidence our decision and justify how someone has ‘failed’ the capacity test.
There are workers out there with integrity, that ensure that families are fully consulted and treat them as the ‘expert’. Although there are a tiny minority of cases where families are not acting in an individual’s best interests, this is extremely rare and consultation and negotiation by the worker (between funding authorities and the client) often gets the right result.
I still feel that the MCA (obviously if the Principles are followed appropriately) provides a good legal framework.
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Thanks for this Archie. You may well be right that all these things should happen under the Mental Capacity Act at present – but they don’t. So the Bill clauses are intended to nail on the right to community inclusion and also to reinforce the rights of disabled people and families under the MCA.
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Beware. The Autism Act 2009 was imposed on autistic people. There are still no organisations OF Disabled People of any description on the Autism Programme Board. The lead department is Health. It should always be the Office for Disability Issues (ODI).
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That is the whole point. The autistic and their families have no rights under the MCA. it is worse than the MHA, as all autistics are now being illegally deemed incapable, as the definition has been made deliberately vague.
Unlike the MHA there is no review of being deemed incapable. Once it happens the autistic person cannot make any decisions for himself for life, That is much worse than sectioning under the MHA, which can be lifted as it was with Claire.
The system that allows this to happen gives the autistic and their family no rights ,see my comments on this blog and my blog finolamoss.
Once incapable rubber stamped by Court of Protection IN SECRET, Official Solicitor acting for autistic. No one acting for family as no legal aid, then the LA can remove and encage in independent living, and charge nearly, as much as NHS hospitals, THIS is why they drafted the act and why it is so draconian, so this is the real big issue. iNDEPENDENT away from family units have become the new mental institutions.
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[…] I’ve written before about my experience and concerns of these NHS leadership or support programmes. I have always been sceptical of any organised responses, my natural preference is to usually be outside the crowd. Too much conformity makes me nervous. However my thinking has moved on hugely in the last twelve months, mostly due to my exposure to the dirty reality of life for Sara Ryan and her family following their son’s preventable death. I am aware enough to know that Sara’s experience and LB’s death is just one experience, you could say one anecdote, however the messages that we have received since we started the JusticeforLB campaign would suggest that it’s just the tip of a very big iceberg. I’m not going to use this post to talk about the campaign, you can find out about it here, or about the draft #LBBill launched yesterday to try and really change where the edge is when it comes to support given to learning disabled people, you can find out about that here. […]
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If we are to change the law, and stop this terrible abuse for profit, of the mentally disabled, and indeed the power it gives the state over potentially all of us,we must know what the existing law is, and how it has already been rendered unfit for purpose, by the House of Lords, as it was back in 2007, when the then HL refused to allow the MHA 07 through, as ‘draconian’, but it was resurrected by our coalition.
Please therefore, google, and read, Mental Capacity Act 2005 post legislative scrutiny by the HL Select Committee, particularly the conclusions and recommendations on the definition of ‘capacity’, and the lack of input from carers and the mentally disordered on page 9.
Past and present governments have by MCA and MHA 07,and the systems and professional roles created under these, contrived to create a vague, in breach of the rule of law, definition of capacity, and an all embracing definition of ‘mental disorder’; to increase the acts, and therefore the state’s power.
Law making decisions are given effectively to the professionals, the definitions of which, is further extended under the act, as the courts do not have the resources, or time, to investigate their evidence, and there can be little opposition, as the mentally disordered and family have no independent legal representation, as there is scant legal aid available, and the disordered is represented, by a mainly on message, rubber stamping Official Solicitor, appointed by the court.
Independent Mental Health Act Advocates, merely have a role of clarifying information, and informing of rights, and cannot take part in the actual decision making process. And family need only be consulted, and can be cut out completely from the court proceeding, and forever, if any ‘abuse’ neglect shown, which is likely to be – see my blog finolamoss.
All this is done in secret, and all are gagged for life, so nothing hits the press,It is a terrifying, sealed system, ripe for abuse, control, and making billions, and completely changing social welfare and our treatment of the disabled and old as a society.
It would not be law had we not had a coalition government with no democracy or parliamentary debate.
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I love this page and people with LD should be left with their mum and dad
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Yes, it is obvious that the only people who will care for their children, and know them best,, are their parents,.to say nothing of the terrible abuse,and distress, of removing anyone, but particularly an autistic person, from all they know and love, to a sea of impersonal, zero hour workers, a clinical environment, and a prescribed routine, and an unfamiliar environment.
But what will the National Autistic Society, and other charities, and corporations do, with all the independent living units already built, bought, or leased,needing a constant supply of new autistics.
Do we now get those encaged released.?
Who will populate the empty new development flats, earmarked for my daughter ?.
Who will be the captive audience for new autistic drug trials, and feed big pharma ?.
Who will reinstate proper support at home, and respite centers away from home and schools after 18.
Who will risk assess and social work autistics in the community, as the social workers, GPs, NHS want to see them safely locked away.
The system is set up, and has been planned for over a decade.
How can all this be changed. To say nothing of all the care agencies and corporations hungry to make future profit.
How can this all be fought and changed ?
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I love the LBBill and it’s great there is so much excitement around it. I would love the MHA part to get through but I’m worried that at some point we will come up against some LD psychiatrists who will put doubts in MPs minds.
They might say that there are some situations where someone with challenging behaviour needs to be sectioned and taken to hospital for their own safety or the safety of others, even if they don’t have a mental illness.. They might ask how we propose such extreme situations be dealt with.
I think we need to have some actual examples of how such situations have been successfully dealt with, without the person being detained, because we will definitely be challenged on this point.
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Very good practical point, but legally difficult to draft into a bill.
The big failing was allowing autism to be included in the definition of mental disorder in the Mental Capacity Act 05. It should not have been included, and in any event the definition is too wide.
The autistics would still have problems if they had an acute outburst, particularly in public, because they still could be sectioned under the Mental Health Act, which is why we have now so many thousands, wrongly held as inpatients.
We cannot stop these outbursts, but they must be understood ie they can be due to teenage hormones, as a reaction to environment ie crowds, being stared at, or some physical cause ie faecal impaction.
Despite this, they are all dealt with in the same way, a huge state sledgehammer comes down, and the autistic is a threat to others and himself and removed from society and his behaviour made worse.
Risk assessments encourage this, as does our insurance lead avoid litigation society.
Despite all the money spent on autism awareness campaigns, the situation has been shown to be now much worse for the autistic.
As you say, we need and should have had by now, the fact that autistics can have such outbursts firming written into the risk assessments for all agencies and all CAMS , NHS. GP.
Police should have been made aware of these possible outbursts and reasons,and specialist autistic team at least made available for consultation, to avoid such draconian treatment on sectioning, which can destroy the autistics and their families’ life, and cause so much suffering, and huge expense to the public purse ie 4,000 a week in a NHS hospital/
The mindset for always finding ‘self harm’, rather than diagnosing just frustration, or a means to express unhappiness, or a physical pain, also causes autistic abuse and lately forced removal of autistics teeth.
‘Self harm’f is also being used to cover up abuse by agencies and authorities. As were my daughters 48 bruises which could not all if any have been ,as followed a restraint and she does not self harm.
Self harm also gives the authorities an excuse for medication and encagement.
So outbursts, self harm and the general reactions to certain situations of the autistics, must not be used to remove their liberty and choices.
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A specialist team with knowledge of autism sounds good. And more education of the police. I know these things cannot be written into the Bill but we need to know what to say if we are challenged about how we propose to deal with crises which are now dealt with by removal and sectioning of the autistic or learning disabled person.
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That is precisely why I put this post on..
For the past, at least 20 years, since before 2004, the National Autistic Society, judging by their accounts published in the Charity Commission website, received large amounts of funding, from campaigns of autism awareness and the government..
Why then, have they not tried to sort out this very basic issue ?.
My daughter attended a NAS school, and her local GP never, and would not, do visits to the school, even if it might cause an outburst to attend the GP practice,
My daughter had such an outburst, because she was forced to wait in a crowded waiting room, for half an hour. The then necessitated restraint, caused 48 bruises (all blamed on self harm), 2 years regression, depression,CAMHS involvement, a breakdown in placement, and a 4 stone weight loss.
Why are NAS not more involved with the LB Bill ? Have they,or anyone got examples of how, as you say these explosive episodes have been ‘successfully dealt with’.
The government will also ask, what can we do about ensuring safety on future outbursts, which we cannot, because that is the nature of the condition, which is why it should not be within definition in MCA,, but even if it weren’t, would be under MHA.
The National Autistic Society, by now, should at the very least, have tried to highlight this problem, and notified , informed all agencies via fact sheets, and advised the autistic, and their families of their rights ast the state, rather than merely having a solicitor referral service.
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Hi
Fabulous work all!
I am not a social care lawyer, so I can’t speak to the broader background of mental health and social care law and how these clauses complement or override them (and this needs to be set out clearly in any Explanatory Memorandum for MPs etc to get a grip on what this changes and how). But here are some initial thoughts:
Clause 1
There is no statutory presumption in the bill in favour of residence in the community. A ‘due regard’ clause does not do this. It is a ‘process’ not an ‘outcome’ clause. The courts have said the imposition of a duty to have “due regard” does not impose a duty to achieve results. It is a duty to have “due regard” to the “need” to achieve the identified goals. This is an important distinction. LAs do not have to show they have achieved anything, only that they have considered it.
Due regard can be very important in ‘mainstreaming’ issues which would not otherwise be considered at all by public bodies e.g. with the Public Sector Equality Duty but when LAs should clearly be looking at such matters in any event under existing law, it may not add much and may be very easy to discharge this burden.
A statutory presumption is much stronger: e.g. “it shall be presumed, unless the contrary is shown, that the disabled person shall reside …….” This could be linked into later clauses which reference the most suitable living arrangements. There are multiple examples of statutory presumptions in existing law.
Clause 2
You could turn this on its head to put the focus on the individual and not the decision-maker. So, this could be where you create a statutory presumption in favour of community residence where it is requested by the disabled person. The cost of residential care could then be clearly stated to be irrelevant in rebutting the presumption. This is in line with the UNCRPD.
Clause 3
I am not coming from a social care law background so sufficient may be defined elsewhere but it seems a difficult term to me to define as a matter of law. Is the term mentioned in other Acts? Again this clause be turned on its head with the right of the individual placed at the centre. Creating enforceable rights to these outcomes means that a duty will necessarily be created to meet them.
But creating it is as a right is really important. The language of rights allows legitimate claims to be articulated with a moral authority which other approaches simply lack. It also places the focus on the individual and their legitimate claims. A right that is not respected is a violation of a legal norm for which a remedy can be lawfully claimed. Consequently, a rights-based model shifts focus from servicing needs to building the capacity of individuals to understand, claim and fulfil their rights. It would reflect the UNCRPD too.
Clause 4
As above, this could be articulated as a right not a duty with the disabled person’s wishes, feelings and preferences at the core as an enforceable primary consideration. Subs (4) seems to me to allow a get out clause for LAs/NHS by stating specifically that finance is a relevant factor. Some consideration could be given to the balancing act set out in SEN law in relation to the ‘efficient use of resources’ test etc rather than simply referencing financial considerations.
Clause 5
The LA in such a situation should also have to show, before they embark on this route, that they that they have followed a graduated pathway of care options with the disabled person, their families, relevant services etc. This should be a ‘last resort’.
It could articulate clear criteria for making such an application i.e. in what circumstances is residential care ever the “most appropriate living arrangement for the disabled person” . What is the position currently at law with regard to this? Would it need to be altered? How? This clause should reflect the obligations of the UNCRPD.
Clause 6
Rather than ‘Why in each case there was no more appropriate living arrangement in the community for the disabled person’ you could articulate this as a duty to explain why residential living passed the threshold according to the statutory presumption against it.
Clause 7
Due regard duties could be replaced by the primary right of the individual to be heard e.g. ‘disabled persons have the right to say what they think should happen and have their opinions taken into account’
Clause
Is this linked to the Mental Health Act 1983 Draft Code of Practice which is out for consultation?
Just some thoughts!!
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Why as stated in clause 4, should the LA or NHS, decide what is ‘the most appropriate living arrangements?
And why does this have to be a 52 week away from family and home one ?
This is the nub of the whole matter.
Their overriding policy, is to remove autistics to’ independent’ living, a disgusting subversion, for de facto 24 hour supervised encagement.
This is not, as Steve states about the LA being expected ‘to write a blank cheque’ for living arrangements. It is about charities and corporations, making as much profit as they can, from these living arrangements.
My daughter lives at home, and I and she, together only receive £200 per week, where she in independent living, where she might be in just three weeks time, this would at least be £2000 per week with a claim for housing benefit on top, and profit from any medication and/ or drug trial .
Under the Chronically Sick and Disabled Act up to 82,000 per annum can be claimed from the NHS alone..
My daughters £177,000 per annum NAS 52 week school placement, was funded by LA, NHS and Education. By contrast, we received 80 per month, yet she was home a third of the year.
We can now only claim 7.50 per hour on direct payments.
All this money is only available, if these adults are in state care. And had LB been at home, he would not have died, as is likely the 3 a day learning disabled would not have done.
The best care and only love, is from family, and yet social services deliberately cut them out of all care, and sometimes, even contact with their loved ones..
This is why this whole fiction, and nonsense of independent living has been created.And a training industry of workers and practioners have been set up, who can only be commissioned, and paid by the state for services in state care.
The person who would decides my daughter’s capacity, her GP, and her best interests the social services have everything to gain from her encagement, so there is a conflict of interests, and as they must follow state policy, no independence.
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My question is as following:
(1)First question :
I currently can’t feel happy about my son staying in hospital and actually his condition is deteroriated ,however why the doctor who doesn’t have knowledge about autism can have power to recommend that my son needs another hospital treatment?
The decision should came from an independent organization who know autism at least!
(2) Second question:
I as mum can place an order to ask the doctor to discharge my son, however the doctor can bar it ,then tribunal ….but the big risk is that the local authority can displace my role as my son’s nearest relative ..It troat my guardiansip ,,of course I can appeal …however I can’t get legal aid for this appeal …that is the legal advice which I paid money to get it .
That means we have big risk to put the discharge order to the doctor to ask them response us in 72 hours …
I think these are all need to consider to change!
Thank you!
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Is there anyone who could clarify legally the following to help Nina.
What jurisdiction, if any, does an LA have over a Scottish resident, temporarily living within their jurisdiction?
Can the english LA APPLY for an emergency protection order in respect to such a resident ?
It is my understanding, they need such an order to keep Tianze in hospital, if Nina requests discharge and Dr forces a tribunal.
Under what law can the doctor bar this discharge request ? And keep Tianze in hospital without SUCH A CARE order under CA. ?.
If NHS does refuse to release Tianze, without a legal order,could Nina not apply for a mandatory injunction under Human Rights Act s8 for his return to her or habeas corpus.
In the recent case of Aysha, who fled to Spain, the NHS were threatening an emergency protection order, and they took the child to Spain, but were pursued criminally, I think because they didn’t have the necessary feeding equipment, so it was criminal neglect , when in fact they did so proceedings dropped, HENCE they obtained an arrest warrant, this would not be the case with Nina.
If Nina then returned to Scotland, the local authority could try to remove her guardianship, and gain her parental rights, but on what grounds ? We will have to google Scottish guardianship law.
There is no guardianship in England, it is deputyship at 18.
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Really sorry Finola and Nina but we can not give out legal advice. This blog is to discuss the draft Bill, and while some discussion of people for whom this will potentially have an impact is essential, we can not give advice. Thanks for joining the discussion.
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Reflections on ‘Capacity’ MCA in light of House of Lords Findings
It is clear that the MCA 05, has achieved the very opposite, to that which it purported to want to achieve- the protection of our most vulnerable.
Whereas before, an individual’s decisions could only be made for them, if sectioned by medical staff under MHA, or if they had agreed under Lasting Power of Attorneys or Advance Directives, the MCA ‘capacity’ test, allows, effectively anyone, whose decisions might be affected by their physical and/or mental condition, albeit temporary, to be decided for them, our most frightening, and draconian law to date.
And, as the Court of Protection acts in secret, and often gags its participants for life, ‘the quiet revolution’, promised by the Act, is effectively becoming, the surrender of the mentally vulnerable fundamental freedoms of abode and care to the state.
The Act states it puts ‘the individual at the heart of the decision making process’, but then conspires to remove the individual’s means of making a decision. So one wonders what it real purpose is?
Under the MCA, it must be established by those wishing to make decisions on behalf of a person, that they lack ‘capacity’, as this is presumed.
This will happen if a parent/LA apply for Deputyship, at 18 in England, or Guardianship at 16 in Scotland, free standing, or in conjunction with a Deprivation of Liberty Order.
Even if a person is held to lack capacity to make a ‘particular’ decision, the Supreme Court has held, if their liberty is affected, it will be illegal without obtaining a Deprivation of Liberty Order. This will have a big effect on the ability to physically examine, but does not apparently affect the state’s right to force feed medication.
Under the MCA, all practical steps must have been taken, to help the person make the decision without success. But the House of Lords Select Committee Report found this was ‘rare in practice’
Blanket incapacity should not be sought, or assumed, the incapacity should be specific to a particular decision, and a person might have capacity in respect to one issue, but not another. Again the Select Committee, found ‘blanket assumptions were being made on the basis of people’s condition’.
They also found, families and carers painted a depressing picture of their exclusion from decision making.
And LA’s under used Independent Mental Capacity Advocates, and they in any event were reluctant to challenge LAs due to funding conflicts.
All this is exacerbated by the lack of any independent medical experts available to the family or patient, or non means tested legal aid, rendering the family and/or the alleged incapable, effectively powerless to ensure the Acts provisions are adhered to.
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Fully agree fionla’s view !! We wish the new bill will consider this point that how to assess incapacity properly ! These professionals use the name of incapacity to ingoring the basic human rights of disabled people actually work for their interests!
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Further Reflections on Mental Capacity Act and Human Rights;
Once it has been assessed, that a person lacks ‘capacity’, any act done to that person, or decision made, on their behalf, must be in that persons ‘best interests’.
Here, as the House of Lords report revealed, ‘families and carers painted a depressing picture of their exclusion from decision making’, at best, they are consulted, but have no right to be part of the decision making process.
Thus, what is in a person’s ‘best interests’, is left to an informed social services assessment, which the law trusts, to be in that persons ‘best interests’, without any independent voice, or consideration of the conflict of interests between the profit to be made from medical and social care, and the incapacitated person’s interest.
The Local Authority assessing ‘best interests’, will abrogate ultimate responsibility to the courts, but the court of protection work load has increased by 60%, and its staff decreased by 30 %..
There is also no non means tested legal aid, and as the House of Lords report found, the legal profession, nor apparently anyone, fully understands the Act.
An official solicitor, is usually appointed to represent, the soon to be incapacitated, and he is paid by the state, and can only effectively, receive instructions from professional agencies, who are in favour of a finding of incapacity. And therefore, cannot fulfil his duty to his client, and the court, to obtain a fair hearing.
So having decided a person ‘incapable’, and the act or decision to be in his ‘best interests’, the last requirement that must be satisfied under the Act, is that before the act is done, or the decision made,‘ 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, on behalf of the ‘incapacitated’, is removal from family home, to state institution, and the state have removed effective support for care at home, and within the community, it will not be difficult to show, that such care and support cannot be ‘effectively achieved’, without removal.
So the state’s withdrawal of effective support provision at home, and within the community, which it has a statutory duty to provide, aids their decision, on behalf of the incapacitated, to live in state care.
But it very important to remember, the Act must be interpreted to give effect to the incapacitated human rights, and therefore his right to privacy, and family life has to be taken into account.
State removal, away from family, and 24 hour supervision, is the ultimate interference with this right, so is not a proportionate interference, and will be in breach of his human rights.
Therefore, an incapacitated person could apply for a prohibitory injunction under s 8 Human Rights Act, to prevent his removal, but how would he know about his human rights, and who would act on his behalf, the Official Solicitor paid by the state in favour of this removal ?
It could be argued, in any event, that removal from home, is the most restriction action that could be taken, so this requirement is not satisfied.
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Matter of Concern Re Support at Home, rather than independent of the family living,that arise from the Carers Act 2014
LA have a duty to make an assessment of both disabled and carers.
This can be a family assessment.
The carer can refuse an assessment of them, but I assume, not of the disabled person.
Whilst LA are under a duty to provide support for the disabled, they are not under a duty to support the carer, this is merely a discretion.
They are not under a duty to provide direct payments for a disabled person who lacks capacity.
Safe Guarding Boards are to be set up to investigate the abuse and neglect of the Disabled, presumably not in state care as no whistleblowers.
All the above is very worrying for parents,,who do not want their children removed to independent living at 18.
An assessment of the carer is a duty , why, if the LA do not need to provide support for them ?
I feel, as these assessments are both emotional- psychological assessment, and medical, presume GP records, can then be used to show parent carer is not fit to care or might not be in the future As was tried to show against me see my blog.,.
If, a family assessment used the effect on siblings etc of the disabled at home could be used in favour of independent living.
The fact that direct payments cannot be made to those incapable, will mean state control of care ie only LA care of their choice, which could spy be provided, as they did on me see blog,and justify a capacity assessment, which will show incapacity allowing state to make all the decisions under MCA .
Despite its name, this act, appears to conspire, to give the LA more power over the disabled family and these families should be warned of this, and these matters addressed in the LB bill.
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[…] It was great to meet the Minister, to hear his plans and to share ours. We look forward to working with the people writing the Green Paper to make sure the key points of the LB Bill, and your views and comments are taken on board. So please keep them coming. The draft LB Bill, is here. […]
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[…] allies that have pledged their support as individuals and organisations for the principles of the draft LB Bill. Nor does publishing a Charter do anything to actually make the rights contained within it real. […]
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