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Why MCA?

May 2, 2018

My apologies but an old familiar bee has been buzzing in my bonnet again. I know I’ve turned into one of the great bores of England on the subject but it’s a pesky bee and I don’t want to get stung. What is the bloody point of the Mental Capacity Act?

Commentators always talk about the MCA being a great piece of legislation. They focus on its aspirational qualities. Words like “empowering”, “liberating” and “human rights based” are common adjectives applied to the Act. I agree that on paper, the MCA looks like it encapsulates all those positives but what price those positives if they remain on paper and are seldom translated into people’s reality?

My bee became reactivated during Danny Tozer’s inquest. The inquest was a two week examination into how Danny came to die in a Mencap supported living facility. All the evidence revealed that Danny didn’t live an empowered life. There was nothing liberating about life in this Mencap warehouse. It was a regime that was service led. Apathy ruled. It took an external consultant to remind the staff that they needed to show “kindness” and “interest” in the residents. The Mental Capacity Act doesn’t even get a foot in the door in these types of regimes.

During the inquest, the Mental Capacity Act was mentioned just once. Totally staged and used by Mencap’s barrister to fit his narrative for the fortnight – whatever happened, it was always somebody else to blame. Clearly coached, the Mencap witnesses either suffered the most alarming case of mass amnesia (the York outbreak) or they woefully attempted to shift the spotlight elsewhere. In the solitary mention of the MCA, the barrister asked one of the Mencap managers whether they had considered the deprivation of liberty safeguards. The manager responded that it was the responsibility of the City of York council.

Screech. No it’s not. Mencap were the managing authority. The deprivation was taking place in a Mencap home. It was down to Mencap to start the DoLS ball rolling. And that was that. The MCA’s sole appearance of the fortnight. In the cast list of the inquest, the MCA appears just below “man in hat at petrol station”. The barrister and the manager were playing a clearly rehearsed game. They were pissing all over Danny and the legislation to serve their own ends. What was just as shocking was that nobody else picked them up on it. None of the other barristers challenged their presentation. The coroner didn’t interject with “Hang about Joseph. You’ve got that a bit arse about face”. I don’t believe they were all playing a game. It was simply a display of total ignorance. The key, empowering legislation a complete irrelevance to Danny’s life and death.

If the MCA made a single solitary appearance, the Human Rights Act didn’t get a look in at all. We shouldn’t be surprised at this omission. To Mencap, Danny wasn’t seen as human so his human rights are unlikely to figure in his care arrangements. But we’re in a very grim place when the two foundation stones for a learning disabled person’s life are transparently missing. The law doesn’t feature at all for all the people tasked with giving Danny a fulfilling, meaningful life. How can this be? Is there any other area of law that is so routinely ignored? Is there any other group of citizens where the law has so little impact on their life?

As the inquest reached its conclusion, I found myself discussing these concerns with a leading human rights activist. He reminded me that, seven years on, Steven’s case is still the only published judgment that brings together the Mental Capacity Act and the Human Rights Act to really serve the citizen. I find that dearth of cases really shameful. I also get very embarrassed when Steven’s case is called a “landmark case”. For me, a landmark case opens doors for others to follow. Steven’s case opened the door for a nanusecond and then was slammed shut and bolted the minute he walked through. That’s not a cause for celebration.

I was told that Steven’s case represents “hope”. I’m afraid that’s a bit too random for me. We need more than hope. We have more than hope – we have legislation, albeit nobody is interested in it. I still hold out hope for the Human Rights Act. There’s a whisper that there may be another 7 Days of Action campaign soon and my hopeful wish for any campaign is that the narrative can shift and we start seeing the human. With rights.

But we haven’t got long. We’re living in pretty bitter, intolerant times and post Brexit it’s probably going to get nastier. Already hostile environments will become more hostile and the learning disabled are convenient Aunt Sallys for that hostility.

I’m just not sure whether the MCA has any traction in that sort of world.

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8 Comments
  1. judyb permalink

    My understanding of the MCA was that it was meant to stop people being restricted, so you should be able to do what you want when you want unless there are very serious reasons why that isn’t a good idea. Thought it was meant to stop exactly what was described – people’s lives being restricted for organisation’s covenience. It seems to be used for exactly the opposite…….

  2. shirley buckley permalink

    Mark Please go on to Court of Protection hub fluctuating capacity MB and Surrey CC 2 judgments by Judge Parry Cardiff COP (all in the public domain. You could also read Alex Ruck Keene April newsletter. I have transcripts of all the hearings. The judgments were only published after months of my fighting to get them on Bailii. MB (guess who) was a party to the proceedings, attended court on 4 August 2017 as did his brother and a family friend. This must be the worst travesty of any Act that has ever been passed. MB has lost every legal right there is. His social worker now refuses to work for him, as does his advocate under the Care Act. However the residential care home where he is still deprived of his libertycontinues to take £2400 a week in fees. MB has not visited his mother since 24 December 2017. You will note that MB does have capacity (which we allhave always known. Hard luck MB

  3. I had some similar feelings hearing about how this ‘tenancy’ worked. I was amazed to find it was supposed to be supported living which to me means the control should be with the tenant… it felt far from this – and even in registered care people still have rights and a home can be run by the people.
    Having resettled people from hospital to their own homes in the community in tenancies in the early 80s we got on with it – and in fact an ex-staff has written an article about some snippets in the early days with such simple things – like staff don’t have keys…in this Spring issue of Community Living magazine https://www.cl-initiatives.co.uk/part-of-the-community. No MCA in those days but it meant we worked it out – that balance between freedoms, and protection, respecting people’s rights – an ongoing discussion. I’d already learnt that people aren’t stupid however disabled they are. We worked together with mutual respect, learning together about recapturing their lives. Maybe we’ve needed the laws and the ever-growing CQC regs because the sector is now out of control and out of sight…. There’s not much chance commissioners really know what’s going on and it feels as if the victims are people with learning disabilities whose lives are increasingly over-scrutinised and managed – whose needs are theya ctually meeting? Time I agree for more Human Rights’ challenges – people’s right to a private life..

    • Yes, the right to a private life.
      Yes, control should be with the tenant..
      We have to keep reinventing the wheel because people just don’t want this freedom for others. It has to be written in stone.

  4. As we all know and my blog posts attest, the MCA always was unworkable, that is why it took 2 years to get through even with a huge Labour majority in parliament and was made subject to a Review which proved disastrous. It could not and cannot lead to empowerment, and that was never its real intention. It is unworkable and is being enforced illegally by COP . Its real purpose was to control and make profit out of the two million + and increasing people deemed illegally incapable under it. To allow them to be torn from families, completely disempowered and forcefully medicated and encaged for life, so private corporations could control all care with no accountability claiming 4,000 + per week in public money, boosting our fragile economy at the expense of a huge deficit.

    The vulnerable were much more empowered when they had autonomy and freedom with the High stepping in under common law necessity and inherent jurisdiction if they had no family with an enduring power of attorney.

    Now the State via NHS/LA using COP abuses and encages them with no accountability.

  5. wiseupwales permalink

    Like so many other things, measures ostensibly designed to protect vulnerable people are used to protect professionals and often become yet more obstacles to living any kind of normal and self-directed life. My father found himself post-stroke in the Court of Protection, a man with a keen intellect and severe aphasia, defending himself against a claim that he lacked the capacity to decide to continue to live at home with the support of his sons. And while the case was settled in his favour eventually, no one should have to go through that process. Incidentally, he wouldn’t have been able to manage to argue his case without help of his children (the ones not hell bent on getting him into residential care at any rate!). I’m not convinced a lawyer would have done a good job – the other side’s one certainly didn’t!

    Mencap, meanwhile, run their projects with blanket policies that are surely not compatible with person-centred planning. I’d love someone to tell me I’m wrong about that but it’s what I’ve seen and heard… DoLS, MCA and human rights appear not to feature prominently if at all in Mencap’s regime, but what might we expect to see if they did? Would it be any better?

  6. Mark, I think you’re right about a nastier environment with Brexit coming and Europe fading into the distance, but there are still pockets of good care that respect people already and don’t need an MCA.
    And those Mencrap type regimes wouldn’t give us the time, never mind use the MCA.
    We know what sort of game they’re all playing with memory loss. Money for nothing.
    Steven and Connor are the leading examples – why be embarrassed about success- speaking our minds is our biggest weapon and you do it really well.

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