Day 10 of the #LBBill Twelve Days of Christmas and we’re onto Clause 7.
The focus of Clause 7 is making the Mental Capacity Act 2005 work better as a safeguard for disabled people and families. It is supposed to empower disabled people and support family involvement, but we are concerned the opposite is happening and it is being used to enforce the wishes of the public authority and exclude families from decisions.
This, and our proposed changes are explained further in today’s audio introduction film with easy-read images
We propose three changes in Clause 7:
- Make it impossible for a person to be found to lack capacity to make any decision, unless there has been consultation with the disabled person and friends and family members about their ability to take the decision for themselves.This could only be overridden where it was necessary and in the person’s best interests for capacity to be decided without consultation. This would typically be restricted to emergency situations, not choices about where they live.
- Make disabled people’s own wishes and feelings ‘a primary consideration’ in every decision taken about them where they lack capacity to decide for themselves. This would require their full range of human rights to be respected.
- Require consultation with family members and friends in all best interests decisions, as long as it is possible and in the disabled person’s best interests to do so. We think that the current requirement for family and friend consultation is much too vague and easy for state bodies to ignore.
We think these changes would make the Mental Capacity Act a much stronger and safer piece of legislation. Do you agree?
Are there other changes to the Act you would like to see?
Let us know what you think, on the feedback pages of the blog, on facebook, twitter, or
LB Bill 
As I have previously posted.
‘Capacity’, as assessed under the MCA, is the most dangerous weapon of the state, against the autistic,and in fact all the deemed learning disabled.
And therefore the most fundamental issue, that needs changing by the LB Bill..
The law under the MCA, is already being applied by the LAs illegally, and the clogged up court ofhttp://www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/13902.htm protection are rubber stamping these illegal decisions.
This is a huge scandal, and has been evidenced by the House of Lords Select committee enquiry report, earlier last year, as I have already posted, see link above.
This clause, does nothing to address these issues ie that the LA are illegally under MCA, applying blanket general incapacity decisions, on effectively all autistics, ignoring the presumption of capacity, application to individual, ad hoc decisions and basing on condition of the person assessed..
I have been informed in certain schools before the autistics are 16/18, parents are being told that they will be deemed incapable. This is illegal.
The autistics and learning disabled, must be removed from being within the definition of being’ incapable’ in the first place. As they are under the Mental Health Act, unless there is an application by a friend/ family member and GP, and behaviour severe and violent, or an emergency situation, and then detention is subject to periodic review, capacity is not – SEE safeguards in MHA
How can the understanding and capability of an autistic person possibly, be decided in the first place,??? because of their communication and conceptualising difficulties ?. This reality makes incapacity decisions substantively void ab intio, as impossible per se..
THE TEST under the act is therefore inappropriate.
The matters proposed above, are already law, if you look at the Codes of Practice under the MCA, AND even if they were not, consultation, is not worth anything, as it just means, the need to be informed first before an action, and the opinions/ wishes of those consulted, can, and are already, being ignored.
As to the last point.
The draconian nature of ‘capacity’ under the Act is such, that once deemed incapable, the person, can have no wishes to be considered. Lady Hale described an incapable person objectively, as not being able to appreciate they were living in a cupboard, but it would still be a deprivation of liberty.
These proposals, do nothing to change existing law, or try to implement it legally, or more importantly remove the autistic from the definition, because of the nature of autism, or at least have safeguards like Mental Health Act..
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Hi Finola,
I’m one of the people working tirelessly to try and make the #LBBill happen, in an attempt to make some improvements to what we all agree is an inadequate system. I’ve read every comment you’ve made and your frustration is clear, what isn’t clear (to me at least) is what you’d like us to do instead. Or what you/others are doing instead?
I don’t agree these proposals would do nothing to change existing law, but if you consider this to be true, what would you rather we did? It would really help if you could explain how the Bill could be improved (because that is what we’re trying to focus on) to ensure it does what you think it should. If you think we’re all wasting our time, that’s valid too, but it would help me if you were explicit because I’m trying really hard (and failing) to understand what you’d like the Bill to do. I hear what doesn’t work, I’m asking for your solutions.
Thanks
George
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I think, if you read the codes of practice, you will see that the family etc have to be consulted.
As to suggestions, as I posted, I already made these suggestions, as set out in the last post this morning, and, months ago on this blog when asked .
As stated in my post today suggestions are set out, but here again..
Remove autistic and learning disabled from definition of capacity. Or at least have safeguards of use only in emergency for limited period on application of family member as in MHA.
If this cannot be achieved, then force the agencies- LA, SS, GP etc to comply with existing law, as set out by act ie no blanket assessment on condition, by making the assessor personally liable to be sued for incorrect assessments.
One of the big weakness of MCA, from the autistic’s viewpoint,, is that provided the assessor reasonably believes that a person is incapable, he will not be liable if person is in fact capable.
The standard imposed on assessor should be made higher ie must be sure that a person is incapable.
Also, there must be some effective appeals procedure against capacity decisions ie legally aided not means tested, and payment available for a family’s chosen expert to oppose assessment.
It is very dangerous, and a conflict of interests, that the LA effectively employ and instruct expert employed by state, when they are the ones, seeking a person to be incapable.
The system works on an inquisitorial, paternalistic basis, ie that the LA can be trusted, and they have proved by their acting illegally that they cannot.
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The burden to proving incapacity is on the LA , but under MCA05, can be discharge on the civil standard of the balance of probability, that the person is incapable, is more likely then not.
In view of the utter draconian affect on that person, and his family, of a finding of incapacity,This should be changed by the LB Bill to the criminal standard of proof, ie that the assessor must be sure , beyond a reasonable doubt, that the person is incapable.
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An interesting read as a relatively inexperienced social worker and at parts very uncomfortable (it is good to read people’s views around practice to fully understand and improve practice however). I guess there are two things from my view- 1st is that accepting that not all social work practice is good and that I am lucky in the la that I work for a local authority that have always championed good practice in relation to the MCA.
Second is that I share the view that assessments need to be more concrete in terms of determining lack of capacity. Too often (and believe it or not I think social work especially with learning disabilities within my team and in my limited experience are much better at this then say in older people services) social workers/LA are seen as making decisions in isolation, this is seldom, if ever the case though I do think they are at times too influenced by risk adverse ideas or pressure from else where in the system (prime example being delayed discharges act where LA gets fined for NHS defined bed blocking). Not saying this deflects the arguement but our health colleagues have a significant way to go in catching up with social workers in terms of understanding MCA and that best interests stretches outside of clinical outcomes.
Has been an interesting read and I agree more needs to be done in practice in relation to improving outcomes of people deemed to lack capacity- after all the act was intended as a safeguard for them, not a weapon for public bodies to use to get their own way.
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Shocked that such poor practice in terms of brandishing people as incapable of making any decisions goes on (perhaps me being naive). That fact that assessments are time and decisions specific is a fundamental part of the act!
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Read the HL select committee report, and you’ll see this is what they found and there is a non reply in net from gov..
Sorry link does not work We do have a government and LA, that do act illegally on the basis of end justifies means, and judicial review, the only check on illegality is now severely restricted.
Also the drafting of legislation is also often so vague, that it offends the rule of law. And as we have a coalition gets pushed out largely undebated.
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The basic problem is that the autistic and LD are being assessed as incapable when they are not, if this happens it will not help them that the assessment is time and decision specific.
tHIS IS more basic, it goes to the root of the assessment criteria itself, The test is inappropriate for most autistics per se.
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