Floyd Porter is a Chartered Legal Executive, a salaried partner and joint head of the mental health and capacity department at Miles & Partners. He shares his thoughts on mental capacity issues.
Having now reached the middle age period of my life, I now have a very different perspective to mental capacity issues than I had from the vantage point of relative youth.
When the Mental Capacity Act 2005 came into force, I was definitely in the camp of those who regarded mental capacity as something to think about in the future. However as that future approaches at what feels like an increasing rate of velocity, I find myself often asking, "Do we take for granted our ability to make decisions and should we make greater provision for the possibility of losing that ability"?
Mental Capacity Law
As a practitioner in Mental Capacity Law, I have acted on behalf of both relatives and the official solicitor (who act on behalf of those unable to conduct proceedings themselves in court). I have frequently been surprised at the lack of preparation given to this aspect of life.
Most are advised to make wills in preparation for their eventual death, but few seem to consider the importance of making provision for decisions to be made on their behalf, if they lose the capacity to make decisions for themselves.
"Next of Kin"
The concept of the "Next of Kin" is frequently referred to as a solution, but the phrase lacks any real authority in relation to decision making where a person lacks capacity.
Preparation for this possibility is important. A good example is the case of admissions into hospital for treatment. The generally held view is that in this eventuality, your "next of kin" will have the final say as to what treatment is administered to you. This is regretfully inaccurate where you have been assessed to lack capacity to make decisions in regard to treatment decisions.
In such circumstances the decision rests with clinicians, except where preparation has been made in advance, for example:
- where a lasting power of attorney has been executed or
- an advance statement in relation to treatment has been made by the individual whilst they had capacity to make decisions.
Deprivation of Liberty
For those considering this issue, decisions around financial and property matters will be foremost in their thoughts. Personal health and welfare is where issues can have the most direct impact on an individual and where making your wishes known in advance can be of greatest assistance.
Consider the case of deprivation of liberty. An individual can only be deprived of their liberty by a local authority acting in the role of Supervisory Body under the Deprivation of Liberty Safeguards, or by the Court of Protection which has a separate power to authorise a deprivation of liberty. Appointing a personal welfare attorney under a Lasting Power of Attorney will assist those required to make decisions to take into account your wishes, as an attorney is able to make decisions on behalf of the individual, whilst taking into account the wishes of the detained individual.
The Cheshire West case
In the Cheshire West and Chester Council v P  UKSC 19 case the Supreme Court attempted to simplify what was felt to be the confusing way in which individuals were protected under the deprivation of liberty safeguards system. The case is important because the Court sought to define what is meant by the term "deprivation of liberty" and further sought to clarify what type of restrictions amounted to a deprivation of liberty.
The Court found that a person was deprived of their liberty "if they were under continuous supervision and control and were not free to leave", the so called "Acid Test".
This redefinition led to a sharp increase in the number of people regarded as being deprived of their liberty. It also led to some individuals residing in their own home being classified as deprived of their liberty, and in these instances a power of attorney would be helpful to those required to make decisions
This led directly to a sharp increase in the number of applications to the Court of Protection and also required the court to make provision for those deprived of their liberty in places other than care homes and hospitals, and to have their deprivation authorised by the Court.
The Court of Protection Rules
The Court of Protection Rules, which were revised in 2017 sought to address the pressure to the Court system caused by the Cheshire West case. The new rules sought to emphasise the importance of participation by the incapacitated person in Court of Protection proceedings.
Until recently, that participation was limited to the appointment of a litigation friend by the Court. This was expanded by the revised rules and the creation by the Law Society of the Mental Capacity Accreditation Scheme. The scheme provides a panel of experienced Court of Protection Practitioners from which the Court can appoint Accredited Legal Representatives to act on behalf of the individual lacking capacity and ensuring their speedy participation in proceedings.
Whilst the potential effects of the Mental Capacity (Amendment) Bill currently making its way through Parliament are unclear, it is unconscionable that an individual's participation in proceedings is curtailed. A person's participation is a key component, even with the unknowns of Brexit and its potential impact upon European Human Rights Legislations. Accredited Legal Representatives are likely to continue to have an increasing role in regards to Mental Capacity Act proceedings.
What remains relevant is that individuals should consider this issue in advance and have a say in who is able to make decisions on their behalf. This is so important and "Thinking Ahead" is the only way to accomplish that.
Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.
Explore our Law Society Mental Capacity Accreditation Scheme
Members can call our free confidential helplines staffed by solicitors for advice, anti-money laundering, conveyancing, private client, litigation, solicitors' costs and professional indemnity insurance support. Staffed Monday - Friday 9 -17:00
Solicitors or their staff can call our free and confidential Pastoral care helpline 020 7320 5795 if they are experiencing personal, financial, professional or employment difficulties. Staffed Mon-Fri 9 -17:00
How are you, really? LawCare promotes and supports good mental health and wellbeing in the legal community. Call 0800 279 6888 Monday - Friday 9:00 – 19.30, weekends & bank holidays 10–16:00