Court of Protection

MENTAL CAPACITY

JOANNE FRASER – ASSOCIATE SOLICITOR

THE COURT OF PROTECTION

WHAT DOES THE MENTAL CAPACITY ACT 2005 DO?

• Sets out important legal principles concerning people who lack mental capacity, to help them make some decisions for themselves. It also sets out rules for those who make decisions on their behalf.

• Over 2 million people in England & Wales who lack capacity

• Over 6 million family/unpaid carers/health and social care workers

• Some of the main provisions are:

– created a new Court of Protection - a specialist court to deal with decision making for people who may lack the mental capacity to make some decisions.

– created the Office of the Public Guardian - an agency of the Ministry of Justice which can supervise decision makers, keeps registers of appointments and report to the Court of Protection where concerns arise.

– introduced Lasting Powers of Attorney – which can be made by a person to authorise that decisions can be made on their behalf in the future if they become unable to make their own decisions.

• It authorises decision making on behalf of a person who lacks mental capacity, in relation to the following:

• Their property and affairs – such as their home, savings, assets, income and spending decisions.

or

• Their personal welfare – such as their personal care, healthcare, place of residence and with whom they live (but this is only in relation to people aged over 16, as welfare decisions for children are dealt with by a different process).

• It allows the creation of Advance Decisions To Refuse Treatment – which can be made by a person to set out what medical treatment they wish to refuse in the future.

• It created a system of Independent Mental Capacity Advocates - trained people appointed in hospitals and communities to represent the rights of people who have no one else to speak up for them.

• It created the Deprivation of Liberty Safeguards (DOLS) – rules concerning the proper process to be followed in the restraint or restriction of people living in hospitals or care homes.

THE NEW COURT OF PROTECTION

• The Court of Protection has an important role in making decisions concerning people who may lack the mental capacity to make some decisions, and has a number of important powers.

• It is a specialised court, staffed by trained judges in several cities across the country. It is intended to be accessible and retain an informal style in hearings.

• It can decide whether or not someone lacks capacity to make a decision for themselves.

• Where a person cannot make their own decisions, it has the power to make decisions for them about:-

• Their property and affairs.

or

• Their personal welfare

(but only in relation to people aged over 16).

• It can make decisions about Lasting Powers of Attorney, as well as decisions about Enduring Powers of Attorney.

THE KEY PRINCIPLES OF THE MENTAL CAPACITY ACT 2005

Section 1. of the Act sets out 5 fundamental principles:-

1. There is a presumption that a person has mental capacity unless proved otherwise.

2. A person should have all practical steps taken to help them come to their own decision without success before they are to be treated as incapable

duty to ensure that we take every practicable step to support the individual to make their own decisions.

• presenting information in an accessible format a

• helping the individual to communicate their decision to you, for example using symbols, pictures, signs, assistive technology, clear jargon-free text or a translator if the person does not speak English

• Identify the preferred communication methods

• allowing time for the person to process the information or being aware that certain times of the day might be better than others

• ensuring the environment is comfortable, private and does not have any distractions

• using calendars and diaries or objects of reference

THE KEY PRINCIPLES OF THE MENTAL CAPACITY ACT 2005

.

3. There is not to be a presumption of a lack of mental capacity just because a person makes an “unwise” decision.

4. Any acts done for a person lacking mental capacity should be done in their “best interests”.

5. Before taking an act for a person lacking mental capacity consideration should be given as to whether the desired outcome can be achieved in a less restrictive way.

WHAT IS MENTAL CAPACITY?

• ‘Mental capacity’ = our ability to be able to make decisions.

• These may be everyday decisions about what we choose to eat or what we decide to wear.

• There may be bigger decisions about where we want to live, what health care treatment we need or what we spend our money on.

• Some people have ‘fluctuating capacity’. Meaning they can make decisions some of the time or at certain times of the day but not at other times.

DEFINING WHETHER A PERSON LACKS MENTAL CAPACITY

• Section 2. of the Act sets the definition of when a person lacks mental capacity:-

• “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

The Act goes on to specify:-

• It does not matter if the impairment is permanent or temporary

• Age, of itself, does not establish a lack of mental capacity

• An “unjustified assumption” of a person’s condition should not, of itself, establish a lack of mental capacity

• Lack of ability to communicate, of itself, does not establish a lack of mental capacity.

HOW TO ASSESS MENTAL CAPACITY

The measure of mental capacity is “decision specific”.

Consider the complexity and magnitude of what they propose to do.

The test in all cases is whether a person is able to:-

Understand information relevant to the decision

• Take all practical steps to support that person – consider using symbols, pictures, signs, assistive technology, interpreters or whatever the person needs to help them understand what is involved in the decision they have to make

Retain that information

• Consider strategies to assist, i.e. repetition?

Use or weigh up that information as part of making the decision

Communicate their decision whether by talking, using sign language or any other means

• Identify best way of communication

THE DUTY TO ALWAYS ACT IN THE “BEST INTERESTS”

Section 4. of the Act sets out a framework for considering what is in a person’s “best interests”:-

As far as possible the decision maker should consider:-

• The person’s past and present wishes and feelings (including any written statement made when he had capacity)

• The beliefs and values that they would be likely to have if they had capacity

• Factors they would consider “if able to do so”

• Other people should also be consulted, if appropriate, namely:-

• Anyone named by the person as someone to be consulted

• Anyone caring for the person or interested in their welfare

• Anyone appointed under a Power of Attorney

• Any deputy appointed by the Court

DECISION MAKING UNDER THE MENTAL CAPACITY ACT 2005

• ARE THERE CONCERNS ABOUT CAPACITY TO MAKE THAT DECISION?

• CONSIDER IF THE CLIENT HAS THE CAPACITY TO MAKE THAT SPECIFIC DECISION AT PRESENT (MAY SEEK FORMAL ASSESSMENT)

• CONSIDER STRATEGIES TO ASSIST THE CLIENT TO MAKE THEIR OWN DECISION

• CAN THE CLIENT MAKE THE DECISION WITH ASSISTANCE?

• A DECISION OR SERIES OF DECISIONS IS REQUIRED TO BE MADE FOR A CLIENT

• GO AHEAD ON CLIENT INSTRUCTIONS WITH THEIR CONSENT

• ASSESSED AS HAVING CAPACITY FOR THAT SPECIFIC DECISION

• YES

• NO

• YES

• NO

• NO

• CLIENT LACKS CAPACITY TO MAKE DECISION – CONSIDER WHAT COURSE OF ACTION IS IN CLIENT’S BEST INTERESTS AND CONSULT IF APPROPRIATE

• MAY TAKE INSTRUCTIONS FROM DEPUTY, ATTORNEY OR SEEK DIRECTIONS FROM COURT OF PROTECTION

• YES

MAKING DECISIONS

• Where authority to make a decision is required for a person, because they lack the mental capacity to make such decisions, it will be necessary to make an application to the Court of Protection.

• When making a decision the Court may either:-

• make a single decision about that matter; or

• appoint a Deputy (one of two types) to make decisions on that person’s behalf, where a series of decisions are required over a period of time.

(i) Property and Affairs Deputy

(ii) Welfare Deputy

• In recent cases the Court has confirmed that in personal welfare matters, a single decision by the judge is to be preferred to the appointment of a Deputy. The Court is reluctant to appoint a welfare Deputy, except where particular circumstances make it appropriate.

THE NUMBER OF DEPUTIES APPOINTED

2009 2010 2011 2012

Property and Affairs applications received by the Court

17,068 18,360 18,708 21,479

Property and Affairs Deputies appointed

9,982 9,437 12,042 12,563

Health and Welfare applications received by the Court

1,531 1,283 1,060 1,285

Health and welfare Deputies appointed

112 106 136 101

CODES OF PRACTICE

• The MCA 2005 sets out a broad framework - the Code fleshes that framework out.

• The Lord Chancellor has a duty to issue Code(s) of Practice.

• The Codes have legal force and the following must have regard to it:

– Those with formal powers (attorneys / deputies)

– Those acting in a professional capacity or who are being paid

– Those carrying out research under the Act

– IMCA’S

• Failure to comply with the Codes of Practice can be taken into consideration in Criminal or Civil Court proceedings.

THE OFFICE OF THE PUBLIC GUARDIAN (OPG)

• Replaced the Public Guardianship Office

• Maintains a register of LPA’s and Deputies

• Co-operates with other agencies to supervise Deputies and investigate complaints

• Provides evidence to the court

• Provides information and guidance to the public

• Works on processes and procedures that underpin the systems

POWERS OF ATTORNEY (POA)

• A POA authorises someone (The Attorney) to do something on behalf of someone else (The Donor)

• A person can appoint someone they know and trust to make decisions on their behalf

• Several different types of POAs:

– General Power

– i.e. when you go on holiday you grant a POA for someone to have authority to deal with your bank account. Very specific

– Ceases to be valid if you lose capacity

ENDURING POWERS OF ATTORNEY

– Enduring Power of Attorney (EPA)

– To deal with situations where capacity is lost or may be lost.

– Appoint an Attorney to make decisions about your financial affairs whilst you have capacity and when you lose it.

– You can no longer make an EPA as these were replaced under the MCA 2005

– Any EPA’s made prior to the 1st October 2007 are still valid.

LASTING POWERS OF ATTORNEY (LPA)

• Lasting Powers of Attorney

• Two different types of LPA:

(i) Property and Affairs - Finances

(ii) Personal Welfare – decisions on health and welfare

• An LPA must be made whilst the person (Donor) has the mental capacity to do so

• Donor must be 18 years or older

• Legal document

• Allows a person (Donor) to appoint someone (or several people) they know and trust to make decisions on their behalf, even after they have lost the mental capacity to make their own decisions

• The person making the LPA decides:-

– Who to appoint - attorney

– How they are appointed

– What restrictions or guidance are in place

• The LPA must be registered with the Office of the Public Guardian before it is valid

• Registration process can take up to 10 weeks.

• Registration fee as of 1 October 2013 is £110.00 per LPA.

• 150,000 LPAs registered in 2010/11; 183,000 LPAs registered in 2011/12 and 229,000 LPAs registered in 2012/13.

• Attorney can make decisions about the Donor’s property etc unless the LPA places restrictions

• Can state LPA can not be used until Donor loses capacity or if no restriction can be used whilst Donor is still capable

• Attorney under a duty to keep accounts

• Attorney has a duty of care and must act in Donor’s best interests

The LPAs contain a “Certificate of Capacity” that may need to be completed by;

(a) a Medical Practitioner or Solicitor if there are issues over capacity; or

(b) a person who has known the Donor for at least 2 years.

Managing a bank account on behalf of someone else

• A comprehensive framework has recently been produced for people who need to manage a bank or building society account on behalf of someone else.

• The guidance will help staff in banks and building societies to recognise and understand LPA’s, Deputyship Orders and other third party management arrangements.

• E.g. for LPA’s, the guidance sets out the following:

What is an LPA

Effect of loss of mental capacity

Form, content and validity

Practice points to note (e.g. what to do regarding gifts, joint accounts etc)

Who can be an attorney

What to do once the LPA has been registered on the bank’s system

HEALTH AND WELFARE LPA’S

• Attorneys could make decisions about healthcare and medical treatment:

– Where the Donor should live

– Day to day care

– Consenting to or refusing treatment

– Rights of access to personal information

– Assessment for and provision of community care services

• General authority or can place restrictions or conditions

• Health and Welfare LPAs can only be used when the Donor has lost capacity whereas Property and Affairs LPAs can be used prior to losing capacity if the Donor chooses this.

• Where the LPA provides attorney with authority to make decisions re treatment, attorney does not have authority to consent or refuse when:

– Donor has capacity to make the particular decisions

– If life sustaining treatment must be express provision within the LPA

– Donor has made an advance decision to refuse the specific treatment

– Donor is detained under Mental Health Act

LIFE SUSTAINING TREATMENT

• With regard to Life Sustaining Treatment, if the LPA provides authority for the attorney to make such decisions, the attorney must act in the Donor’s best interests.

• Attorney must consult with Donor’s family, health care staff etc

• Attorney must not have a desire to bring about Donor’s death.

• If there are doubts over the attorney’s decision- the Court of Protection can be asked to make a decision.

Joanne Fraser

Irwin Mitchell LLP

2 Wellington Place

Leeds

LS1 4BZ

www.irwinmitchell.com

Department Tel: 0113 220 6229

Email: joanne.fraser@irwinmitchell.com