Mental Capacity Act As Of 1.10.2007

Discussion in 'Legal and financial issues' started by 117katie, Oct 15, 2007.

  1. 117katie

    117katie Guest

    #1 117katie, Oct 15, 2007
    Last edited by a moderator: Dec 21, 2007
    you don't really care so don't clog up the space on TP
  2. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    #2 jenniferpa, Oct 16, 2007
    Last edited: Oct 16, 2007
    Apart from calling the Alzheimer's society help line, you might also look at the mind site You will have to be clear when you talk to anyone that your relative has not been detained under the 1983 Mental Health Act, but the inssue is the social worker's interpretation of the mental capacity act. This act is so new that it will be difficult to find any real informtaion about it. However, the guardianship website may have something ( on their brand new web site.

    To be honest I've only had a quick look through but nowhere can I find the term "Decision Maker". There are court appointed Deputies, could that be it? I do not believe it is within the power of the local authority to make this decision, only the court appointed deputy can do that, so I would start out by asking for a copy of the court order.

    Edited to add:

    Having had another look, I see that section 5 gives the option for informal decsion making which seems to be what has happened here. However it also says that a formal application is appropriate if there are disagreements that caonnot be resolved. It also says you can contact the court of protection if you need to ask advice, and I would suggest you do that first. Actually what it says is

    There are certain situations however where informal decision-making is not appropriate, and an application to the Court of Protection is necessary. This may include for:
    • particularly difficult decisions;
    • disagreements that cannot be resolved; or
    • situations where ongoing personal welfare decisions must be made about someone who lacks capacity.

    I have to say that sounds like your situation.
  3. 117katie

    117katie Guest

    Thanks for the info, but I have read 332 pages so far of the Code of Practice!! And the social worker says in her letter to me today that she is making the deicion having been bound by the Mental Capacity Act and the Code of Practice that accompanies this piece of legislation. "We are also bound by local policies and procedures" and she then quotes the local authority Staff Guidance on the Application of the Mental Capacity Act 2005 (edition 1) which states according to her tht the decision-maker is the person who is deciding whether to take action in connection with the care or treatment of an adult who lacks capacity or who is contemplating making a decision on their behalf. She states quite clearly and in these words "I am the named decision-maker and have been working with the multidisciplinary team as a whole to reach a final decision."

    My relative was placed into the mental health unit as a voluntary patient, albeit she herself was not in a position to make that choice, and it was made with my full knowledge, on the understanding that she was being moved there for full assessment of her needs. She was most definitely not placed there under the Mental Health Act, or because she was a danger either to herself or to others. Purely because the sheltered housing where she was living has not got the slightest idea about dementia or how to handle someone like her.
  4. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    I would definitely contact the court of protection. While this new system is designed to allow social services to make decisions as needed, I think it's quite clear that this informal arrangment is not supposed to be a long term arrangement. However, in order to for it to not be a long term arrangment I think you will have to make an application to the court to be appointed a deputy.

    I have a horrible feeling that you may be the first of many in this situation. In many ways I am fortunate that my mother died before this came into force - as someone who lives overseas, I can easily imagine a scenario where I might have been marginalised like this. So, please keep us posted if you can.

    Best wishes
  5. 117katie

    117katie Guest

    Thanks, and that was my feeling - namely, that "social workers" and "care workers" are protected by this new act in every decision they feel the need to make AT THE TIME THE DECISION HAS TO BE MADE. But I am desperately searching to find out where they are empowered by the new Act to make long-term decisions, especially when someone has living relatives whose views must be taken into consideration. And I feel the wool has quite deliberately been pulled over my eyes: they have deliberately kept my relative in their secure unit until such time as they considered that the new Act gave them the power to make decisions they knew I would not like.

    And, in fact, when the social worker phoned me the day after the decision had been made, without my knowledge, her first words were "you're not going to like this ...". It was as if they had deliberately kept me out of the framework. I have a sister with whom I disagree about the best residential placing for our relative, but I asked the Consultant to arrange a formal meeting where we could put our views forward. But the Consultant chose not to do so, and the decision was made without my even being able to be present at their team-meeting.

    I guess I will now have to pay the £400 fee to the Court of Protection to ask them to look at the decision that has been made. I am needless to say horrified that I should have to go down this route, but in the interests of all those who may have to face a similar situation, I will just have to do so.
  6. Morny

    Morny Registered User

    Oct 11, 2007
    Hi Katie
    Just come across something related to this. My husband had residential respite care last Nov whilst I was on holiday, and I understood when SW came to visit last week it was to discuss arrangements. Nothing was mentioned about new act. I said I wasn't going to tell him until the time came for him to go, because he created such a scene last year. Naturally he didn't want to go. SW returns with CPN and out it all comes. She decides Bob hasn't got mental capacity, but still insists he can make his own decision to be left alone in the house with some daytime supervision. None at night, when he is most vulnerable. I said be it on your head if this goes badly wrong. She said we don't take responsibility. His diagnosis is a very shrunken brain which gives him no learning hence no short term memory - yet he is allowed to make the decision.:confused: I have made a bit of a fuss and am awaitng SW's managers decision. I believe they don't really know enough about the interpretation of this act. I tried to read it but couldn't see some of the things they told me.
    Guess we are all going to come across related problems here.
    Maybe if you stand up to them at present they will back down cos of lack of knowledge
    Love Morny x
  7. 117katie

    117katie Guest

    Thanks for that, Morny.

    I have absolutely no confidence in my social worker or her multidisciplinary team, I am afraid, so I have to question every single thing that comes my way from them. They have told me so much rubbish that I am almost at a loss to know where to go next. This new Mental Capacity Act is something that, as far as I can see, protects the care workers more than it protects the vulnerable person "lacking metnal capacity". And let's face it, it is hard to argue that someone like my relative - who can't even remember what day it is half-an-hour after you have reminded her - does not lack mental capacity at certain times. But, as I have read the act, the fact that she cannot necessarily retain the information is no reason to deny her the chance to have these choices discussed and explained to her. But the best person to talk to her about these choices is me - not the social worker. She remembers me - she was there the day I was born; she has no trouble working out who I am; nor of realising that I have never done anything in my life that is not in her best interests. But she has no idea who the social worker is, so why should her faith be placed in someone she doesn't even know?

    Thanks for your kind words.
  8. Morny

    Morny Registered User

    Oct 11, 2007
    I whole heartedly agree with that.
    Trouble is with Bob he's always been a crafty individual and right now he's struggling to make sense of most things but the old survival instinct crashes thru, and he tells them outrageous lies about his abilities. He comes across very plausible. Makes me feel they don't believe me. They get a snap shot and make a decision on a very brief association with sufferer.
    I do so hope you can get things sorted to a satisfactory conclusion
    M x
  9. janetruth

    janetruth Registered User

    Mar 20, 2007
    Hello Morny

    My mum is also VERY convincing when it comes to 'Talking the Talk'.
    Any outsider, who knows little about this TERRIBLE ILLNESS would probably enjoy her fabricated STORIES and believe what she has told them.

    Mum has lived with us for over 13 months and if anyone knows her needs it;s me.

    This so called MENTAL CAPACITY act is a new one on me and I knew bothing about it, but it could explain why a man we know, had little say in where his mum went, after her hospital discharge. He told us SS would not let her go home ( to her daughter, in council house, who she had lived with for years, health and safety etc) and she is now in NH The family are clubbing together to pay the top up fees, for a NH closer than the one the SS were going to put her in.

    SW is coming today, I am curious to know what she knows and will mention this to her, forwarned is forearmed.
    Take Care
    Janetruth x
  10. Cate

    Cate Registered User

    Jul 2, 2006
    Newport, Gwent
    Just a thought, it seems that SW's are assuming that this new Act is giving them the same sort of 'power' as a Section, that cannot be right.
  11. 117katie

    117katie Guest

    Morning, everyone!

    After a fairly rotten night's sleep, I am returning to where I left off last night.

    Yes, this new Mental Capacity Act only came in on 1 October 2007 - and it looks as though I may be one of the first to have to challenge the social worker's interpretation of it. It has taken me 10 days to get her to write to me to explain to me why she is the "appointed decision maker", so it is likely to take me much longer before I get her to explain IN WRITING why I was not even informed of the meeting at which these decisions would be made. And also to get her to send to me a copy of the so-called Staff Guidance that she says she is working to. I guess I may have a right to see that under the Freedom of Information Act, after all it would be in the public interest for us to know how she is receiving her guidance. If anyone has any words of wisdom to offer, I will be here at the keyboard most of the day, writing the necessary letters, so I will check the talking point throughout the day.

    I cannot believe that social workers can now claim to have the power to decide where someone lives. I cannot believe they cannot convene a "case conference" so that all points of view can be aired. There were people at that so-called decision meeting who have never met me; there were people there who have been on leave for 6 of the 10 weeks my relative was in hospital; there were people there who have no idea about the 83 years of life this woman has lived.

    I am truly appalled by it all. Please please please - if anyone tells you they have powers under the Mental Capacity Act which you do no agree wtih - then please challenge them, and do what I am going to have to do: get help somewhere else.

    Cheerio for now
  12. Laylabud

    Laylabud Registered User

    Sep 7, 2007
    I am reading this with interest. My mother signed an EPA about 9 years ago after my dad passed away in case of any future health reasons. Because mum now has AD i have never used this EPA until recently. I went to her bank on the 8th sept with the EPA to stop direct debits going out of her account. I hvae heard nothing from the bank until today they have told me that it looks as if i am now going to have to go to the court of protection to get a LPA. I was of the understanding that if i already had the EPA this should be ok and a legal binding.

    Can anyone clear up this for me

  13. 117katie

    117katie Guest

    It's Katie here - the one with the big MC Act problem. I've done a fair bit of reading of late, and we ourselves have EPAs which were set up before the Mental Capacity Act came into force on 1.10.2007.

    As far as I understand it, any EPA which was set up before that date is still valid, but it is not possible to set up an EPA now, as they have been replaced by two different kinds of LPA (Lasting Power of Attorney) - one covers financial matters; the other covers health and welfare.

    The only info I have to offer is that it may depend on whether the EPA was set up so that it only came into force if/when your relative lost mental capacity. And also whether or not you have registered the EPA. Worth reading the following web info:

    But go back to the Bank and ask them why they say your existing EPA is no longer valid, especially if it had already been registered.
    Good luck
  14. Margarita

    Margarita Registered User

    Feb 17, 2006
    #14 Margarita, Oct 16, 2007
    Last edited: Oct 16, 2007

    I Read in another post of your that you have no house to sale , so they an easy option for you

    have you organized with all your mother pension , benefits , to became your mother appointee .

    You have to contact the pension office AA Or pension credit send them EPA , Then someone from the benefits agency come around to your home .

    as if you have organized with them already to be your mother appointee, you have full control in what account all your mother money is paid in to , it can be paid into your
    account in your name .

    I Phone my mother bank , told them what I was doing [ I have EPA on they system ] and am my mother appointee , so they canceled all direct debit . will they had to , because they was no income coming in . Now all mother pension AA is legaly paid into my account in my name

    To much hassle this 3 partly EPA .

    if your mother has saving in that bank , that is another issues , that some else may offer advice in what to do.

    Make appointment with bank manger get EPA On they system
  15. germain

    germain Registered User

    Jul 7, 2007
    DCA website

    I have "googled" the act and was directed to DCA site (Department for Constitutional Affairs)- there's a lot of info in plain language that can be downloaded.
    But the big thing I picked up and is repeated everywhere is that family should be consulted - they have the knowledge of what the person themselves would have wanted if they had been capable of the decision- and most people would want to be in a care situation NEAR their families. Also that if you have a registered EPA (even the old days one) then the attorneys can be the decision makers.

    I wonder if your SW made the decision because it was cheaper ? I might be being a bit naive but can't find anywhere where it says that the LAs financial interests should be considered paramount !
    Before the Act SWs would make decisions like this every day but only after a care assessment - its possible that this has been done properly but the terms have changed - so the SW in charge of the assessment is now acting as the decision maker for SS - this is fair enough for them internally I think BUT they still need to consult - I don't think they can just arbitrarily decide that they are the decision maker for your relative.

    I think that in a very roundabout way that what I really wanted to say is "scream the place down " - about lack of consultation and lack of proper consideration of personal best interests.

    And on a personal note we are watching our Mum in hospital like a hawk - she is now in a small community hospital for physio & rehab where all the old ladies seem to be catheterised - this has been mentioned in passing and we gave a resounding "no"
    - lots of vg care workers we have spoken to say in around 50% of cases this is done for staff convenience rather than patient need and can cause more problems than it solves !
    (elaine02 - have you any thoughts on this - being very experienced in care ?).
    We are prepared to argue as decision makers that it is NOT in our Mums best interests and is not medically necessary .
    Regards - and any help I can give is reading thro' the 100s of Act pages - just let me know - as a retired Civil servant I'm used to it !!

    Give 'em hell
    All the best
  16. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    The problem that I see with this new act is the use of the word "should" as in "should be consulted" rather than "must be consulted". It gives the opportunity for some people to go off on a power trip unchecked. I feel desperately sorry for those of you who are going to have to be trail blazers with this in force - it won't be until there is case law relating to these issues that this whole thing will be clarified.

    Layalabud - absolutely the EPA remains valid. However, the website says "However if you have an unregistered EPA, it can still be used and your Attorney will still need to register it with the OPG if they have reason to believe you are, or are becoming, mentally incapable in the future."

    You will note that this could mean you are still allowed to use it even though it's unregistered or that it remains potentially valid but that you must register it before use.

    However "The Mental Capacity Act:A Media Snapshot Guide
    How the Mental Capacity Act will affect customer-facing building society and bank staff" says

    EPAs either registered or unregistered can continue to be used after 1 October. As is the case now, if at some point in the future the client lacks or is beginning to lack mental capacity to manage their financial affairs then the EPA will have to be registered before it can continue to be used.

    In other words, while as in the past an EPA works just like a general power of attorney when the donor still has capacity, the position now "seems" to be that once capacity is lost the EPA should be registered. Now you could say that has always been the case, but in practice it hasn't always worked that way - many people have filed unregistered EPAs with banks and then the subject has never been raised again. I don't think that will continue to workable.
  17. 117katie

    117katie Guest

    Believe me, Germain, I am continuing to scream the place down! I will not go away quietly - and they know that.

    I have today looked through all the notes I have made of all the many conversations I have had over the past year, with social worker and with the Consultant. At no point has anyone ever said to me that they will be the decision maker at the end of the day. And I can even quote the day I asked them to call a formal "case conference" so that we could all exchange our opinions. I attended a Ward Round recently and the Consultant actually asked me whether I would like The Team to make the decision about where my relative should live, and I said no way!! They have made enough wrong decisions so far - she is too important to be left in their hands.

    You will hear me screaming the place down, wherever you are, don't worry!
  18. Mameeskye

    Mameeskye Registered User

    Aug 9, 2007

    I think that this is one of the times that I am glad that I live over the border!

    It is a shame that you are being faced with legal challenges to this new legislation which is most likely being enacted incorrectly by the social worker.

    MY thoughts are with you


  19. Morny

    Morny Registered User

    Oct 11, 2007
    Hi all
    Very interesting reading, my "problem" is quite the reverse, all I'm asking for is 2 weeks residential respite care to have a much needed holiday. But because Bob was asked and said he didn't want to go and I don't agree he should have a DAY time care package. They spoke about an advocate to plead his case. I'm not at this point asking for anything else. They are considering (if he does stay at home) a trial run for 2 days and want me to move out so they can do it. Guess he could be ok with no night care for 2 days but not 14, so what sort of test is this. He's used to being alone in the day for long periods while I'm at work. They do not want to take responsibility for anything that goes wrong. Cake and eat it or what!! Think cpn's & sw interpret it way they think
    M x
  20. 117katie

    117katie Guest

    Hi Morny - again! And I am glad you are there!

    My main problem with all of this **** that we are having to deal with is as follows: we know our Loved-Ones better than any GP who has come their way over the last (in my case) 10 years of her life.

    BUT that same GP practice has for the last 10 years (AS FAR AS I CAN FIND, FROM ALL THE PAPERWORK THAT I HAVE SIFTED THROUGH OVER THE LAST YEAR) given her a prescription for 100 paracetamol tablets each and every time she has presented herself in the surgery sayint "I have back ache". And even though the last prescription for 100 paracetamol tablets was prescribed for her AFTER THEY KNEW SHE HAD A DIAGNOSIS OF DEMENTIA - I cannot for the life of me find out why THE MOST SENIOR PERSON AT THAT PRACTICE gave my 83 year old that prescription. I phoned DOCTOR SENIOR PERSON immediately, and I asked "DO YOU NOT KNOW WHAT DEMENTIA MEANS? IT MEANS THAT SHE MAY NOT REMEMBER TOMORROW WHAT YOUR HAVE SAID TO HER TODAY". fOLLOWED BY How many times do I have to read about someone taking too many paracetamol tablets and suffering the consequences?

    I am almost at the end of my tether with the ability of THE PROFESSIONALS to place their trust in THE OTHER PROFESSIONALS who each fill in a simple form, and submit it - signed, sealed and delivered - to the person who asked to see it. BUT IN MY CASE ................. THE DATA PROTECTION ACT is quoted to me aghain and again and again. And so I then ask "So who is meant to speak up for my 83-year old who can't speak up for herself?" BUT I know her better than any care worker who has recently arrived on these shores, and who speaks little English that my 83 year old can understand, and her social worker has only been working for the last 8 months in the locality .... AND SO ON.... AND SO FORTH.


    No, I think there is nobody out there who cares as much as we do.

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