Specialist solicitor Ian Cranefield says too many care professionals are taking decisions about vulnerable adults without properly assessing capacity or consulting them – in breach of the Mental Capacity Act’s principles.
In recent months I have found it both depressing and intensely frustrating that some of the fundamental principles of Mental Capacity Act 2005 have had to be explained in detail for many organisations, before a sensible discussion about legal solutions to a problem can commence.
Within the last three months, for example, I have had to deal with:
- A local authority which has seemingly refused or failed to ask a man who appears to retain capacity whether he wishes to see his partner of 12 years or remain in a care home, where he has been placed by his children without his express consent. Many decisions about this gentleman are being made without assessing his capacity, properly consulting with him or exploring his wishes through an independent mental capacity advocate (IMCA).
- Local authority social workers responding to allegations of neglect, emotional abuse or undue influence by undertaking casual interviews with the alleged victim in the presence of the alleged abuser.
- Care home managers working with the family of a resident to decide arbitrarily who gets to visit the resident in the care home, without recognising that interfering with the resident’s rights and freedoms of social contact (and those of the visitor) must be properly authorised as a deprivation of liberty under the Deprivation of Liberty Safeguards (Dols).
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