1. Grommit

    Grommit Registered User

    Apr 26, 2006
    2,127
    Doncaster
    In pursuance of my case to received these so that i can have someone to look after Jean whilst I am at work, I have, today, received a letter from Doncaster council, via my MP that says inter alia:-
    "Direct Payments are currently not available to people lacking capacity, as defined by the Mental Health Act 2005 i.e a person lacks capacity in relation to a matter if he/she is unable to make a decision for him/herself in relation to a particular matter because of an impairment of, or a disturbance in the functioning of the mind or brain.

    The current legislation states that an individual must be able to give his or her consent in order to receive a direct payment, people who lack capacity are unable to give this consent.

    On 16th Nov 2007the Dept of Health published an intended modification to the bill to extend the the Direct Payments to those that lack capacity."

    I am about to write to the person and try to get some points clarified:-

    1) No mention is made of the form the consent must take.I can ask Jean a question and obtain a yes or no. Will this suffice as consent?

    2) No mention has been made of the fact that I stated other Councils have viewed the legislation in a different manner and already allow Direct Payments to Carers.

    3) Due to the fact that the extension to the Bill has been published, is it not possible to pre-empt this and make the Payments anyway?

    I shall also copy the letter to my MP, the Minister for Health Milliband and the Shadow Minister for Health.

    The final paragraph of my letter will include the phrase "taking away the human rights of people with Alzheimers disease" and will make it clear that I will go that far to defend my position.
     
  2. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    Good luck to you Grommit. Having looked at the Mental Capacity Act, it seems to me that it supports your position. There are a variety of ways to signal assent to such things, and the act makes it clear that there ARE a variety of ways to do this. You don't have to be fully cogniscent of the ramifications of direct payments, for example, to express a desire to receive them. In fact, I thought the act specifically addressed the fact that there is a range of capacity - you might not be able to decide if you should invest in compnay X or Y, but you can decide if you want to have rice pudding for dessert or ice cream, and the act supports such a dichotomy. Have they ever asked your wife? No they haven't so how do they know?
     
  3. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    As a P.S. to the above: if they're quoting the act at you, perhaps you might quote that act at them

    1The principles
    (1)The following principles apply for the purposes of this Act.
    (2)A person must be assumed to have capacity unless it is established that he lacks capacity.
    (3)A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

    and

    3 Inability to make decisions

    "(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
    (3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision."
     
  4. Grommit

    Grommit Registered User

    Apr 26, 2006
    2,127
    Doncaster
    Jennifer. Thank you very much for that information.

    It might be a better way to tackle it, if i find out who is responsible for making the decision that Jean is not capable.

    If it is a non qualified minion of the social Services, there may be a get out there.

    Thanks again.
     
  5. ROSEANN

    ROSEANN Registered User

    Oct 1, 2006
    909
    staffordshire
    Hi Grommit
    Do you have E.P.A for Jean because if so that should be enough, I do for my husband and I was granted Direct payments.
    They had to be in his name with my name on the account and I do all the running of the account.
    Hope this helps
    Roseann
     
  6. Norman

    Norman Registered User

    Oct 9, 2003
    4,348
    Birmingham Hades
    Hi Grommit
    still fighting I see
    An EPA is not enough
    I have just been speaking at a ameeting of Social workers about guess,Direct payments.
    I think your best attack is as Jeniffer quotes:
    I did pursue this consent matter and the above was given to me.
    as an answer.I am beginning to think that someone who is dealoing with you is ignorant of the procedure at all.
    Hope this is helpful
    Norman
     
  7. Grommit

    Grommit Registered User

    Apr 26, 2006
    2,127
    Doncaster
    Thanks Norman and everyone. As soon as i can stop seething and knock toghether a response to these people, i will post.

    thanks again.
     
  8. Grommit

    Grommit Registered User

    Apr 26, 2006
    2,127
    Doncaster
    Just to keep everyone in the picture I have today mailed the following to the person who knocked back my application for Direct Payments.

    I am indebted to Norman for his help in directing me to the parts of the Act which are relevant in my case.

    Dear Madam,

    Direct Payments: Mrs. Jean.

    I have to hand your response to J. Ennis MP in relation to the above case.

    There are a number of points with which I want to take issue arising from the letter.
    According to my understanding of the Act quoted ( Mental Capacity Act 2005), I quote:-

    “The principles:

    (1) The following principles apply for the purposes of this Act.
    (2) A person must be assumed to have capacity unless it is established that he lacks capacity.
    (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
    (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
    (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
    (6) Before the act is done, or the decision is made, regard must be had 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.

    On principle 2) – I am not aware of any visit from any qualified consultant who has the ability to make the judgement that my wife lacks capacity within the spirit and intention of this Act.
    My having EPA on behalf of my wife is not indicated within the principles of the Act as being an assumption of lack of capacity.
    On principle 3) – I am not convinced that all practicable steps have been taken to help her make a decision and I am sure that, if those steps were taken, a decision would be forthcoming.
    The principles of the Act do not identify what form that decision can be transmitted which clearly implies that the decision can be transmitted in other ways than writing.
    On principle 4)- this principle has yet to be tested in the case of my wife and therefore I take this opportunity to identify that I am aware of this principle.

    In addition to the above, further point out clauses in Section 3 of the Act as follows:-
    3 Inability to make decisions

    (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
    (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

    With reference to clause 2 – In the case of my wife, I am not satisfied that the explanation of the Direct Payments Scheme has been presented in a manner using simple language, visual aids or any other means.
    With reference to Clause 3 – I believe that this clause is self explanatory and should be taken into consideration when the ability to make decisions is discussed.
    In the light of the above, I formally request a thorough and detailed investigation into this matter on the following grounds:-
    a) The interpretation on the Act,on the grounds specified in your correspondence, is unfair,
    b) The interpretation of the Act given by yourself violates the Human Rights of my wife
    c) The interpretation of the spirit and intention of the Act has been given without a full and formal investigation of the circumstances under which the application for Direct Payments was originally made.

    Yours Faithfully,
     
  9. Grannie G

    Grannie G Volunteer Moderator

    Apr 3, 2006
    69,569
    Kent
    Oh well done !!:)
     
  10. TinaT

    TinaT Registered User

    Sep 27, 2006
    7,095
    Bolton
    Good on yer Grommit!! They need just the kick up the backside that your letter will give them. xxTinaT
     
  11. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    You go Grommit. I think you've made your point very well. Be prepared for them to take an incredibly long time to get back to you - I suspect they'll have to get someone to explain the whole thing to them before they can respond, and they'll be very cautious now they know you can express yourself.

    Love
     
  12. Grommit

    Grommit Registered User

    Apr 26, 2006
    2,127
    Doncaster
    Just a quick update.

    I have received a letter from the Doncaster Council informing me that they are looking into my case and expect it will take about 6 weeks before any conclusion will be reached.

    Merry Christmas Doncaster Council. You deserve it I'm sure.
     
  13. Grannie G

    Grannie G Volunteer Moderator

    Apr 3, 2006
    69,569
    Kent
    Dare I hope you may be getting somewhere.
     

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