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Tuesday, 7 February 2017

MCA Lack of Training and Understanding

The Edith Ellen Foundation reported in our article Mental Capacity of Teresa Kirk a grandmother of 71years old who was jailed for trying to support a gentleman returning back to his native home country.

Teresa Kirk, refused to give her elderly brother up to UK social services and was jailed for this, has finally been freed from jail. 

But why did she have to be jailed in the first place?

Her brother, who she’s known a lot longer than Social Services and those trying to retrieve him back to the UK, is safe in his Tavira care home.

But Social Services believed they knew better and that they were acting in his best interests. 

Her lawyer Colin Challenger, faced various hurdles trying to lodge the appeal but the head of the family court Sir James Munby agreed that the system had failed Mrs Kirk, and that he had ‘real concerns’ and a ‘sense of unease’ over the case, which in UK cannot be truly explained due to reporting restrictions.

From the outset, it was made very clear that Mrs Kirk has Power of Attorney over her Alzheimer-sufferer brother Manuel Martin’s affairs, and the fact that she was jailed for deciding to put him in a Tavira care home, and not an English one, should have been ‘up to her’, and not an issue over which she could face any kind of prosecution.

As it was, Mrs Kirk’s case came under the ambit of Britain’s so-called ‘secret courts’, and if it had not been for the Dail Mail newspaper, details of it might never have surfaced.

For now, the 71-year-old is “back home with her daughter and grandchildren” and the ‘main appeal’ is likely to be heard before sometime this year.

Which means that for the time being Manuel is safe from UK interference.

This case does raise issues around the use and understanding of The Mental Capacity Act and Deprivations of Liberty by those supposedly looking after the best interests of those of us who require it.  Even the Court of Protection failed to protect those it was meant to, upholding the claims of Social Services that they had more rights to deal with this case than they really did.

What Social Services need to remember is that they are not all seeing all knowing, they are not infallible far from it in fact.

I am not legally trained and my understanding of the MCA may be wrong, but the facts of the case are:

(1)    Mrs Kirk had Power of Attorney
(2)    Mrs Kirk had known her brother and his wishes long before Social Service intervened.  He came to England as a young man from Portugal, has British citizenship, but always planned to return to his home country in retirement.
(3)    Manuel and Mrs Kirk are Portuguese, and had lived in the UK for 50years, but their home would always be Portugal.
(4)    Mrs Kirk was jailed following a dispute over choice of care home for her brother
(5)    Social workers had only met him fleetingly
(6)    Mrs Kirk refused to sign legal papers transferring responsibility for the old man's welfare from herself to the State
(7)    Manuel loves the sunshine and life in Portugal, the country he was actually born in.  If he came back to the UK he would surely be worse off.  He speaks Portuguese as his first language, so he can communicate with the other residents and staff

There are two sides to every story though, and Social Services have a side:

(1)    Social Workers spent 2 hours in the Tavira care home, where they saw themselves how happy and settled Manuel was.
(2)    The Social Workers still recommended that Manuel be brought back to the UK as they felt he would be happier (that’s happier than the happy healthy Manuel they’d seen in Tavira care home!)
(3)    They want Manuel to pay £2,800 a month for his UK care whereas in his home country his fees are £1000 a month
(4)    One of the planks of their argument is that he would be happier in the UK, where he has a cat (which, bizarrely, also cannot be named at the request of social workers in case this identifies him) which may or may not still be alive after Manuel put it in a cattery but which also would not be allowed in the British Care Home
(5)    The care home Social Services want to place Manuel in recently hit the headlines after one 84-year-old resident, a retired banker with dementia, died after choking on a piece of roast beef at lunch. An inquest last year said 'key issues' leading to the tragedy were inexperienced staff and a failure to puree the man's food.

The shadowy court of protection has draconian powers to make far-reaching rulings about almost every aspect of a citizen's life, and their relatives', too. The judges presiding over it can compel people to undergo surgery, use contraception, or even decide if their life support system is switched off.

Just as worryingly, the court can put someone in hospital, or a designated care home, if the State deems it to be in their 'best interests'.  But who’s to say the State has the best interests of some one?

In other words, the life of that person, who may be mentally impaired or simply elderly, is under the control of the court — and woe betide anyone who breaks the rules imposed by it.  Plenty of people who have done so have been sent to prison for contempt of court, just like Mrs Kirk. Indeed, every year, up to 200 people are jailed by the family courts system for breaching its secrecy rules or disobeying diktats from social workers.

How this case unfolded is profoundly disturbing, Social workers and the Court of Protection have ridden roughshod over Mrs Kirk, in an even more draconian move, the court (with the support of social workers) has refused to allow the English Press even to mention the man's relationship to Mrs Kirk.

Lord Justice McFarlane, said: 'No one has stood back and said: 'What are we doing here sending this 71-year-old lady to a six-month prison sentence in order to achieve a welfare benefit for [the elderly man]?' '
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