UK's Mental Capacity Act - outcomes a 'human rights disaster'

This is a shocking expose of abuse of the rights of elderly people and their families. It is, in effect, institutional Elder Abuse.Like the Liverpool Care Pathway, even the best intentions go awry. When dealing with people's freedoms and rights to 'life and liberty' it will never end well. 

The Daily Mail report in full:

Read these stories of how the secret courts imprison the elderly in care homes against their will - and weep

Seldom does a parliamentary inquiry manage to uncover a national scandal on the terrifying scale of the one blazoned across yesterday's Daily Mail front page under the headline 'Prisoners of Care Homes'.

Astonishingly, this report by a House of Lords committee on the workings of the Blair government's 2005 Mental Capacity Act found that 'thousands, if not tens of thousands' of old people have been forcibly incarcerated in care homes or hospitals against their wishes and are being 'de facto detained unlawfully'.

At the heart of the scandal is the ultra-secretive Court of Protection, set up under the Act, which rules every year that thousands of people are deemed to 'lack mental capacity' - so that control of their lives and property can be handed over to social workers and other state officials.

Last year, the Mail lifted a corner of the veil of secrecy surrounding this little-known court's workings when it reported the case of Wanda Maddocks, who was imprisoned by one of its judges for removing her 80-year-old father from a care home in Stoke-on-Trent where he was being abused.

Eventually, he was tracked down by social services, and forcibly returned to care, while his daughter was punished for 'abducting' him with a 12-month jail sentence.

The Mail was able to report the details of this story only after Miss Maddocks was released from prison, because in the meantime her father had died and his case was therefore 'closed'.

What this report highlights is that thousands of people all over Britain have, like Mr Maddocks, been locked up against their will and the wishes of their families on the say-so of 'experts' in secret courts.

While the Lords report is savagely critical of how this system works, finding that it is too often used to detain old people illegally, it scarcely touches on the terrifying consequences of this incarceration for elderly and vulnerable individuals up and down Britain.

A number of journalists like me have long been aware that these constitute one of the most flagrant abuses of human rights to be found anywhere in the nation today.

But it has been extremely difficult to bring this to light because of the way the Court of Protection manages to hide the extraordinary powers it bestows on social workers.

We should be grateful to those members of the House of Lords who have raised the deeply worrying workings of this court to the forefront of national attention.

But it is only when you learn of individual cases, as I have over years of writing on this subject, that you truly appreciate just how much misery the Mental Capacity Act has wrought on those who fall into its clutches.

Here are three such cases concerning families who have contacted me in anguish. Because of the secrecy imposed on each of them by the Court of Protection, I cannot name the individuals and their details are necessarily sketchy - but they will all make you want to weep.

Mr C, who served with the 'Glorious Glosters', as the Gloucestershire Regiment was known for its heroics in the Korean War, had been happily married for more than 50 years when his wife developed Alzheimer's.

At the behest of Exeter social workers, a Court of Protection judge ordered her removal from his loving ministration to a private care home.

Mr C was shocked to observe how his wife was not being properly looked after. When he arrived one day to find her missing from her room, it was eventually discovered that she had wandered off unnoticed and became trapped in a cupboard.

He protested to the social workers, whose response was to ask the Court of Protection for an order forbidding him and his wife to have any further contact.

Not only was he prohibited from visiting her for years, he was not even allowed to send her flowers or Christmas and birthday cards. He finds it hard to speak of what has happened to them both without weeping.


Miss G is a 94-year-old former midwife living in her own house in East London. When Redbridge council social workers sent in 'carers' to help her, she found them hopelessly inadequate.

But a married couple who befriended her at church moved in and looked after her so well that she now talks of them as 'family'.

Meanwhile, the council hired a psychiatrist who found she did not have 'mental capacity' to make decisions on her own behalf, and sought the Court of Protection's permission to take control of all her affairs, including her house and substantial savings.

Horrified, she paid £1,000 to be examined by the President of the Association of European Psychologists. He found that she certainly still had 'capacity' to manage her affairs, and was highly critical of the council psychiatrist's report.
But the judge dismissed his findings, preferring those of the council's 'expert'.

This frail old lady is now terrified the social workers will evict the couple looking after her, and bring back the old carers who were so inadequate, using her own money to pay for them.


Few stories are more upsetting than that of Mr B, whose case came to court at the behest of Essex social workers three years ago and who was deemed by a judge to lack 'mental capacity'. Against his wishes, he was removed from the comfortable house where he spent most of his life, to be incarcerated in a private care home

Initially, his son was allowed to visit him, and one day, at his father's wish, the two went sailing. On their return, the son was arrested, his father taken back to the care home and the son's visits were suspended.

The council had been given by the court complete control of the father's property, money and other assets, including some very valuable pictures painted by a famous artist who was a family ancestor - which it then sent to a local auction house to sell, to help towards paying the fees for the care home.

When the son protested to the auctioneers, they were withdrawn from sale. His father, still able to play chess and do crosswords, despite having been ruled as lacking 'mental capacity', became ever more miserable at his situation.

Only recently, when he suffered a series of injuries inflicted on him in the home, has it begun to look just possible that - thanks to an unending battle fought by the son - this unhappy 85-year-old might be allowed to return home.

There must be hundreds of similar stories unfolding every year, almost none being reported, because of that blanket of secrecy the Court of Protection has been allowed to throw not just around its own workings but over the conduct of everyone who benefits from this system - the social workers, the psychiatrists they hire as 'expert witnesses', the lawyers who act for them, the owners of the private care homes they provide with a regular supply of customers.

As with much else that goes on behind the closed doors of our family courts, no one can argue with the laudable intentions of this system - to ensure those who cannot fend for themselves are looked after. But yet again we see the old truth that, where courts are allowed to operate in secret, terrible abuses of justice almost inevitably follow.

The Lords report concludes that Labour's 2005 Mental Capacity Act, which brought in the Court of Protection and the so-called Deprivation of Liberty rules, has in practice so dismally failed to honour the purposes for which it was put into law that this whole system needs reforming virtually from scratch.

To this end, Lords recommend an independent body is given responsibility for oversight of the Act to drive forward vital changes.

But even in their excoriating report, these peers have scarcely told the half of why this reform is so desperately needed.

There is some hope, however. Lord Justice Munby, head of the Family Division of the High Court, appears determined to open the Court of Protection to the 'glare of publicity'.

Which means we might one day see an end to one of the greatest scandals in Britain.

And you want to give doctors the power to kill people? That'll work well. NOT!