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Mental Capacity Act
by Christine Green
During the second reading of the Mental Capacity Bill in the
House of Lords the Bishop of Worcester said :
‘Clause 1 contains a statement about a vision of humanity and
how humanity is to be regarded. I hope children in
generations to come will study that as one of the clearest and most
eloquent expressions of what we think a human being is and how a
human being is to be treated’.
The Mental Capacity Act is in every way a major piece of
legislation. It is the culmination of a fifteen year long
consultation process. In many ways it is restating principles
which are already well established in common law, such as the
concept of acting in the best interests of someone who lacks
capacity, but for the first time these principles have been given
the recognition of statute.
It affects a very wide range of people. Currently over
700,000 people suffer from dementia. Around 145,000 adults
have severe and profound learning disabilities and at least 1.2m
people have mild to moderate learning disabilities. At some
point in their lives 1% of us will suffer from schizophrenia, 1%
from manic depression and 5% from serious or clinical
depression. Many people will also suffer from serious brain
injury.
It is partly the diverse and complex nature of mental problems
which posed a difficulty for those drafting this legislation and
consequently the Act is broad in scope.
Part 1 sets out the jurisdiction of the new Court of
Protection to make declarations and directions and provides that
the Court can appoint substitution decision makers or
‘deputies’. It also sets out the rules for advanced decisions
to refuse medical treatment. It provides for codes of
practice to give guidance about legislation and creates a new
offence of neglect or ill treatment. It creates new Powers of
Attorney: the Lasting Powers of Attorney, covering financial
matters and (in the first ) personal health
and welfare
Part 2 sets up the new Court of Protection and establishes
a new statutory official known as ‘the Public Guardian’ and ‘Court
of Protection Visitors’.
I think it is important at the outset to note that this Act is
described as the Mental Capacity Act and that positive emphasis
runs throughout the legislation. Lord Filkin, in a letter to
the Joint Committee, stated that the aim was:
‘to maximise the capacity of those who lack or may lack capacity
to make certain decisions for themselves’ and that principle
underlines the Act. It seeks to strike a delicate balance
between respect for individual autonomy and the need to protect the
vulnerable.
The Principles
The key principles set out in the Act are as follows:
1. A person must be assumed to have capacity unless it is
established that he lacks capacity.
2. A person is not to be treated as unable to make a
decision unless all practical steps to help him to do so have been
taken without success.
3. A person is not to be treated as unable to make a
decision merely because he makes an unwise decision.
4. An act done or decision made for or on behalf of a
person who lacks capacity must be done or made in his best
interests.
5. Before that act is done or decision is made, regard must
be had to whether the purpose for which it is needed can be
effectively achieved in a way which is less restrictive of the
person’s rights and freedom of action.
We should add the statements that, when deciding whether a
person lacks capacity it should not be established on the basis
of:
· Age or appearance ; or
· A conditions of his ; or
· An aspect of his behaviour which might lead others to
make unjustified assumptions about his capacity.
Assessing Capacity
The test laid down in the Act is as follows :
‘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 disturbance
in the functioning of the mind or brain’.
According to the Act, capacity is therefore both ‘time specific’
and ‘decision specific’. In other words, it can fluctuate
from one moment to the next and it must be judged in relation to
the particular issue. For example, a person may have the
capacity to choose whether to get married but not to make a
Will. The diagnostic threshold is tested in the following
way. Can the person :
1. Understand the information relevant to the
decision including information about the reasonably foreseeable
consequences of :
(a) deciding one way or another ; or
(b) failing to make the decision
2. Retain that information, though the fact that he
is able to retain the information for only a short period does not
prevent him as being regarded as able to make the decision.
3. Use or weigh this information as part of the process of
making a decision.
4. Communicate his decision whether by talking, using
sign language or other means.
As solicitors, we are often call upon to assess capacity in
relation to Wills. The old test was established in a case
known as Banks v Goodfellow. This provides that in order to
have capacity to make a Will a person must understand :
(a) the nature of the act
(b) the extent of their property
(c) whom they ought to benefit
and there must be no ‘insane delusion which poisons the
affections’.
This test has long been applied when preparing Wills but its
efficacy has probably been eroded somewhat by the new tests set out
in the Mental Capacity Act.
Best Interests
The Act also enshrines the principle of ‘best interests’.
Anyone making a claim on behalf of a person who lacks capacity must
consider the following:
(a) whether they are likely to have capacity in relation
to the matter in question in the future
(b) the need to permit and encourage them to participate
in the decision making process
(c) their past and present wishes and feelings and
beliefs and values which would be likely to influence their
decision
(d) if it is practical and appropriate to consult them,
the view of others such as family members, carers and anyone else
who has an interest in their welfare
(e) whether the purpose for which any act or decision is
needed can be as effectively achieved in a manner less restrictive
of their freedom of action
The principle of best interests replaces the long established
practice of the Court of Protection of ‘substituted judgment’ which
involved the Court standing in the shoes of the person for whom the
decision was being made. The two concepts are subtly
different.
The application of best interests is seen in Mr. Justice
Holman’s judgment in a case where he was making a declaration that
it would be lawful to withdraw ventilation from an eighteen month
old child suffering from spinal muscular atrophy. He said
:
‘I am not deciding what decision I might make for myself if I
was hypothetically in the situation of the patient, nor for a child
of my own in that situation, nor whether the respective decisions
of the doctors on the one hand, or the parents on the other, are
reasonable decisions. The matter must be decided by the
application of an objective approach or test. That test is
the best interest of the patient. Best interests are used in
the widest sense and include every kind of consideration capable of
impacting on the decision. These include, non-exhaustively,
medical, emotional, sensory, (pleasure, pain and suffering) and
instinctive (the human instinct to survive) considerations.
It is impossible to weigh such considerations mathematically, but
the Court must do the best it can to balance all the conflicting
considerations in a particular case to see where the final balance
of best interests lies.’
In summary, the wishes and feelings of the person who is alleged
to lack capacity will not automatically determine the outcome.
General Authority to Act
The essential thrust of this provision is that people who care
for those without capacity should be protected from liability,
provided that the care is in the best interests of the person and
is without neglect.
Court Appointed Deputies
Where a person who has not made a Lasting Power of Attorney,
lacks capacity to make a decision about his personal welfare or
finance, the Court can appoint a deputy. In making this
decision, the Court must have regard to the principles that:
1. A decision by the Court is preferred to the appointment
of a deputy.
2. The powers of the deputy should be limited in scope and
duration as is reasonably practicable.
I know of a number of cases where parents of children with
learning disabilities have been concerned that, when their children
reach eighteen, they are no longer able to make decisions in
relation to matters such as medical treatment or which care home
they should live in. This decision is taken out of their
hands and is dealt with by a number of different bodies. It
is difficult to know at present how the appointment of deputies
will work, but it seems that there is no reason why parents should
not be appointed as deputies for their children in relation to
decisions regarding health and welfare. The Court will give
consideration to the level of skill and competence required and to
the type of issue that is to be decided by the deputy. It is
also expected to be someone who is known to the person.
In addition to Deputies the Act provides for the appointment of
Independent Mental Capacity Advocates. These are people
appointed by the Court who will represent the views of those
without friends or family to consent to proposals when the NHS is
providing serious medical treatment or where a change is proposed
to the arrangements for accommodation.
Code of Practice
The Act is supported by the Code of Practice which provides a
glss on the provisions of the Act. It is 296 pages long and
everyone working in this field should be familiar with its
guidance.
The New Court
The Court of Protection has a new enhanced role dealing with all
means of decision making for people who lack capacity. It
combines the personal welfare and healthcare jurisdiction which
used to exercised by the Family Division with the financial
jurisdiction of the old Court of Protection. There is also
the Office of Public Guardian. The Public Guardian has
various functions including:
· establishing and maintaining registers of Lasting Powers
of Attorney
· supervising deputies
· directing a visit by the Court of Protection
visitor
· receiving Reports and Accounts - complaints
handling.
For those who are not familiar with the Court of Protection, it
is an accessible forum. Hearings are dealt with in an
unthreatening manner. Parties usually sit around a table and
the Judges will often deal with applications on the papers
alone.
Advance Decisions
In addition to the above, the Act make important provision in
relation to advance decisions to refuse treatment and ‘Living
Wills’. It is important that statements relating to life
sustaining treatment confirm that the decision is to apply to
treatment: ‘even if life is at risk’ and those who have made
Living Wills should amend them to include this statement.
Lasting Powers of Attorney
The Act has revised the process relating to Powers of Attorney
to manage a persons affairs once they lose capacity. This is
a subject of a separate note. Existing Enduring Powers of
Attorney continue to be valid but there are now two Lasting Powers
of Attorney, one in relation to financial matters and the other
cover a persons health and welfare
Excluded Matters
The Act does not govern ‘family relationship decisions’.
The following matters are excluded:
· Consent to marriage or civil partnership
· Consent to sexual relations
· Consent to divorce or dissolution of marriage on the
grounds of two years separation
· Consent to a child being placed for adoption or making
adoption orders
· Consent to an Order under the Human Fertilization and
Embryology Act
Conclusion
Does the Mental Capacity Act achieve what it has set out to
do? Perhaps it is expecting too much of a single piece of
legislation to deal with problems as complex and varied as those
posed by mental illness. However, I think it represents an
important stepping stone to a better system. We will have to
wait and see how the provisions operate in practice and how the
principles can be applied, but the Act is the result of much
careful consideration and drafting. It seeks to enable rather
than to restrict and as such offers a new and hopeful approach to
mental illness. I believe it should offer hope for parents,
carers and those working in this area.
Date:
November 2007
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