I think I'm missing something as well because I'm not getting what's actually wrong with what I've said, (not wrong as in oooo I feel all super sensitive, just wrong as in where have I made a reasoning cock up?).
But X does not necessitate Y. X is not the problem, nor is X refused and while X normally leads to Y it can be equally achieved with Y+1 which is acceptable to the person.Still don't quite get the point. X does not want services that necessitate doing Y. X should not be forced to do Y. MCA in action.
To use an off the wall example - very off the wall!! One thing that has always bugged me is that horses are worth more than people, it's wrong but true. I remember a well bred 3 yr old (worth about £9K) that came for breaking but you seriously couldn't get a bridle on him, he had his very own MCA, he weighed best part of a ton and would stand on his hind legs boxing if you tried! We tried a few times without success and my boss said we'd have to break him without putting a bridle on. In that case X does necessitate Y - you do need a bridle. The difference being that 9K. The horse lived in the halter he arrived in (due to same problem!) and we tied the bit onto the bottom when he was worked - he was fully broken before we went back to the bridle problem and by then we could solve it, very very slowly but it was possible. I get the irony of an equine training example on an MCA thread but the point is that the connection between things as necessary is challengeable, even when there's no precedent. For one thing to necessitate another there needs to be absolutely no alternative - more often the reality is that X is usually dependent on Y but not inherently so.
Scrolling back up the thread we were both talking about negotiation, quite freely. It was an obvious issue in regard to decisions and I'm guessing a day to day part of the life of anyone working with people.I'm pretty sure that it comes back to the documentation that the decision x came to was one that she/he understood the implications of, and is demonstrable in accordance with his/her wishes.
At the beginning of the negotiation process both parties are stood at far ends of a see saw, one side touches the ground the other stuck in mid air! Typically, experience has taught me that just listening carefully means the other begins to move nearer the centre of the see saw which often solves the problem without any more effort than patience. Sometimes that's not enough to get the see saw level and then the negotiators skill is to find all means available to also move nearer the centre ground and it's that last part that often goes against 'care culture'.
The culture of care is awash with routines that self reinforce, for example that people are washed in the morning. Care companies employ more morning cover because that's when they wash people but their primary labour source are women and the busy morning wash time clashes with the 'getting kids up and out' time so clients often have to wait till 10am, the evening calls are typically quicker but less staff are hired because of that even though more women want to work evenings after kids are in bed or when partners have got home from work. The habit effects the hiring of staff that then reinforces the habit. People, generally shower and wash according to their own routine with as many preferring the night as the morning, until they can no longer do it for themselves. In no way has hygiene ever depended on whether a person washes in the morning or at night - X does not necessitate Y. In one case at least when I commissioned an evening wash I was told it did, that was easy to overcome as the care company had already said an eve wash was fine, a gobsmacking surprise to my colleagues! As a side note the computer said 'no' to an evening wash, I had to use continence care with a note underneath in long hand to get an evening wash!
Using the washing example, I would argue that where a person wants a wash, where there's no suggestion of coercion the MCA cannot be invoked just because a morning wash is refused with full capacity.
The law uses the word 'reasonable' constantly, I'm not suggesting a world of endless choice and complete flexibility, rather a world with reasonable choice and reasonable flexibility.
In a setting more discussed in the first half of this thread:
In real life my guess is that the carer always takes clients to Netto, or Asda, just as kids in care are taken to McDonald's routinely. That habit plays a part both for the client and carer but it's the carer who has more ability to change habits, however it's easier to invoke the MCA than spend time walking to the local greengrocers! Don't get me wrong, I know there's more to it than that I worked with autistic children for years and have seen extreme perseveration but there's usually some starting point to negotiate.For example taking someone with a mental age of 4 shopping for dinner - he/she is only interested in crisps - so his/her benefits are spent on crisps. Hence lack of exercise, poor diet and resultant obesity and the problems resulting are a consequence of a fear of providing reasonable guidance, and simply gently redirecting such individuals toward more sustainable decision making.
If the MCA is used in regard to the decision prior to negotiation where negotiation is possible and reasonable then surely it can only serve as a responsibility dumping ground? That was what I read as your initial concern. I would now agree it is a primary concern especially while it is new legislation and more at the forefront of people's thinking than older, equally valid legislation requiring 'reasonable' flexibility.
Just as an after thought. I see (might be rubbish though) the MCA as a forerunner to attempting to draw up assisted suicide legislation in that a test we can assess one is needed for the other. If assisted suicide became legal would it also be legal to accept the decision to die from a person prior to investigating whether there were reasonable means to make their life worth living to them? How far would the state's practices and procedures be accepted as unmovable if for the service user death was preferable to compliance with an institution's way of doing things?