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Mental Capacity

Law and Practice

FROM £54.00

Offers practical guidance on the Act and the challenges that the legislation poses

Listen to Gordon Ashton OBE discuss the background behind his title Mental Capacity: Law and Practice and explain how it will help you with this complex area of law.

This new edition of Mental Capacity: Law and Practice, edited by Gordon Ashton OBE, has been comprehensively revised by a team of experienced contributors to provide coverage of all the latest developments in legislation, procedure and case-law. It includes an examination of the deprivation of liberty safeguards, the judicial Re X procedure, a new chapter on international matters and consideration of the UN Convention on the Rights of Persons with Disabilities.

Mental Capacity: Law and Practice provides an authoritative commentary, highlighting areas of potential difficulty and offering practical guidance on the challenges that the legislation poses. It includes the text of the Mental Capacity Act 2005 (as amended) and the supplementary Codes of Practice.

This book is essential reading for all private client lawyers, chancery practitioners, non-contentious lawyers, local authorities and healthcare professionals.

Chapters

  • Background
  • The Mental Capacity Jurisdiction
  • Lasting Powers of Attorney
  • Powers of the Court
  • Welfare and Health Care, Advance Decisions and Research
  • Deprivation of Liberty Safeguards
  • Court Practice and Procedure
  • The Public Guardian and Supporting Services
  • Miscellaneous
  • The Margins of the MCA: The Inherent Jurisdiction; The Overlap with Judicial Review; The Court of Protection and the ECHR

Appendix

  • Mental Capacity Act 2005 (as Amended)
  • Mental Capacity Act 2005: Code of Practice
  • Mental Capacity Act 2005: Deprivation of Liberty Safeguards Code of Practice Supplementing the main Mental Capacity Act 2005 Code of Practice

Index

"a useful book to have at hand ... The title remains an authoritative introduction to the law, practice and procedure on mental capacity"
Family Law journal

"an invaluable and contemporary resource for all ... essential reading for all private client lawyers, Chancery practitioners and non-contentious lawyers, as well as social work and healthcare professionals ... we would also add that family lawyers in general, particularly those assisting the elderly or vulnerable, should acquire it as a matter of urgency ... a work of reference distinguished for its lucid, rational and compassionate approach to this most difficult area of law ... extensive and valuable research resources, including tables of cases, statutes and statutory instruments, as well as a table of European materials ... if you're a family practitioner in particular, you'd be wise to add this book to your professional library"
 Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers


PREFACE TO THE FIRST EDITION

It is 17 years since the Law Society’s Mental Health Sub-Committee (as it then was) first drew public attention to the legal vacuum in which people who lacked mental capacity were obliged to exist. This provoked the Law Commission to take this topic on board and, after several years of consultation, recommendations were made for a statutory mental incapacity jurisdiction. Different governments then pursued further consultation whilst lacking the will to introduce legislation, but pressures to do so became overwhelming with the introduction of community care policies, disability discrimination laws and ultimately human rights legislation. The Mental Capacity Act 2005 is the result, but a consequence of the changed climate is that it must meet higher standards than were expected when the need was first identified.

 This Act builds upon enduring powers of attorney and the existing jurisdiction of the Court of Protection, and follows most of the Law Commission’s recommendations in creating a broad and viable framework. The devil will be in the detail that has yet to emerge through forms, Codes of Practice, regulations and Court rules. There is an inevitable tension between protection and empowerment, and inadequate support may lead to a denial of both. Those who complain that the jurisdiction is too controlling may be the first to express outrage when abuse is not prevented. But we do not live in a ‘nanny state’ and there are issues as to who should fund the new jurisdiction. The existing Court of Protection can seek to be self-funding because it only opens its doors to those who have money.

The new jurisdiction may find itself addressing the needs of some of the most financially disempowered people in the community. Is it in reality an extension of our health and social services notwithstanding that it functions through a Court? The legal rights of individuals who lack the capacity to pursue them must be addressed, but this can only be done in the context of support and care provision, which become the ultimate responsibility of the state.

 No one should allow themselves to be fooled by the familiar terms ‘Public Guardian’ and ‘Court of Protection’. The former is a new incarnation with a statutory role rather than a mere administrative body, and only time will tell how far this role will develop. The latter is a new regional court working within the mainstream courts and enjoying a wider jurisdiction exercised under different principles. Those already working within the existing system do not know how the new regime will develop, so for practitioners and others there must be an element of speculation.

 This book is an attempt by four concerned authors who have throughout been committed to the reforms to explain what is going on and provide some insight into the issues that must be faced. Although the detailed law must be set out, however tedious this may be, we have endeavoured to breathe life into the provisions and procedures. We have also tried to face up to some of the potential pitfalls and difficulties that will inevitably arise in implementing new legislation in this complex area. I wish to thank my co-authors for their dedicated contributions, each being highly experienced in the topics that they have covered. As to the rest I must accept responsibility. We do not claim to be experts – who is in this field? – but for my part I have drawn on 28 years of general legal practice, 13 years as a generic judge and five years’ involvement within the existing Court of Protection. Above all, I have been influenced by my family experience of a child with severe learning disabilities and the insight this gave me into a different philosophy which should influence the legal system more in the future than it has in the past. I have campaigned for this jurisdiction from the inception and wish to see it improve the quality of life of those who lack capacity, their families and carers. Whether it does so will depend upon all those who play a part in the process, but by picking up this book you have indicated that you are one of those people. Thank you for your support.

Gordon R Ashton,
Grange-over-Sands
       January 2006
District Judge Marc Marin, Nominated Judge of the Court of Protection, The Family Court and the County Court at Barnet and First Avenue House
Claire van Overdijk, Barrister, No 5 Chambers
Alex Ruck Keene, Barrister, 39 Essex Chambers
Martin Terrell, Partner, Thomson Snell & Passmore
Adrian D Ward, MBE, Partner, TC Young Turnbull & Ward, Scotland

Past Contributors
Penny Letts, OBE
, Policy Consultant, Editor of Elder Law Journal
Laurence Oates, Official Solicitor to the Supreme Court 1999-2006

INTRODUCTION


As the Mental Capacity Act 2005 approaches its 10th anniversary our mental capacity jurisdiction faces four significant challenges. Two relate to Conventions so concern the international credibility of our once ground-breaking approach to these universal issues. The other two are more concerned with the credibility of our Court of Protection which has grown and matured over its first 7 years and hopefully now found a permanent home.

EUROPEAN CONVENTION ON HUMAN RIGHTS
It always seemed to me that the Human Rights Act 1998 created a climate in which legislation to facilitate decision-making for those who lacked the capacity to make their own decisions became a necessity. None of us realised that the need went further than this, and that any care arrangements that deprived the individual of their liberty would require a system of authorisation prescribed by law. This has provoked the hasty development of two very different procedures with an irrational basis of selection, each designed to satisfy society (and lawyers in particular) that the human rights of vulnerable adults are not being infringed. These processes dominate the Court of Protection and deplete the resources of social services authorities, but the DoLS procedure does not directly address the suitability or quality of the care package and the judicial Re X procedure may not do so on information provided solely by the applicant authority. It may not be the care plan but the way it is implemented that results in an inappropriate deprivation of liberty. In any event it may be fruitless for a judge to query best interests when only one care package is offered by the funding authority. What if judges, who are not well qualified to assess risk or care provision in the real world, have
expectations that the authorities cannot afford to meet? As a lawyer I am protective of human rights, but my wife and I as parents of a disabled child whose liberty inevitably had to be curtailed became more concerned about the detailed care arrangements. I have often written about the delicate balance between empowerment and protection because it is seldom possible to achieve both at the same time, and this now seems to have evolved into tension between human rights and necessary care provision. Scarce resources that should be directed towards the delivery of quality care are being diverted into justification for that care.

UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
I always regarded our mental capacity jurisdiction as a reasonable adjustment that, far from discriminating against mentally disabled people, enables them to enjoy a lifestyle comparable with that of people without this impairment. Previously they existed in a legal vacuum and their personal rights and freedoms were not recognised. There has since developed the notion that any form of differential treatment is discriminatory and this leads to two consequences.

The first is that the ‘diagnostic threshold’, inherited from the previous regime, should not be used as a pre-requisite for admission to the jurisdiction because it discriminates against disabled people. If it was removed those vulnerable adults now being protected by the enlarged inherent jurisdiction of the High Court could be dealt with by the Court of Protection, and that would surely be desirable. But has the Court continued to adopt too medical an approach to this concept? Might the ‘impairment or disturbance of the mind’ be a consequence not only of internal factors but also external forces such as fear, oppression or overwhelming cultural pressures? That interpretation would bring some, if not all, of the cases now being dealt with under the inherent jurisdiction within the ambit of the Court of Protection. It is a shame to create a specialised court to deal with vulnerable adults and then have to supplement it elsewhere.

The second is that supported decision-making must be the norm and delegated decisions on a best interests basis are unacceptable, but how far can support go and who should provide it? We are all subject to influences and it is only undue influence that the law seeks to control, but the threshold for what is undue reduces as the individual becomes more vulnerable. I see great dangers in insisting that support is given to an incapacitated individual to the extent that the decision reached is deemed to be that of the individual. It seems to me that this is inevitably the decision of the supporter so we end up with delegated decision-making without the framework of best interests. Would it not be sufficient for our jurisdiction to place even more emphasis on support in both the assessment of capacity and the determination of best interests, with the wishes of the individual to the extent ascertainable being a dominant factor? All of this could be achieved by judicial interpretation of our existing legislation. The best interests approach as now adopted would be retained for those instances where the individual remains quite unable to make a personal decision (the stage where the Convention offers little guidance).

LEGAL AID
The virtual withdrawal of public funding denies access to the Court of Protection for the majority of people and creates a challenge for the nominated judges. This is counter-productive because, even though the court is only the tip of a very large iceberg, an application to the court is the ultimate means whereby the effectiveness of the jurisdiction can be tested and controlled. It has become necessary for courts generally to adjust their procedures to accommodate a preponderance of unrepresented parties. These parties generally desire a local outcome in a timely and economical manner under a procedure they can understand and without inflaming an already confrontational situation. An early directions hearing, possibly by telephone to save expense but ideally with the parties present, may result in considerable progress and the allocation to track approach in the Civil Procedure Rules 1998 has much to commend it. There is also much to be gained by the new approaches being adopted for family cases. Inevitably there are situations where the law needs to be clarified but very few cases in the Court of Protection set a precedent or require an adversarial hearing, and an inquisitorial ‘small claims’ approach may be sufficient when lawyers are not involved for all parties. A contested hearing is the last resort, but the prospect frequently leads to alternative methods of dispute resolution and the Court should be given power to refer a case to the OPG for this purpose. The first Public Guardian did not see conciliation as part of his role but fortunately that attitude has changed and a mediation scheme is now being tried. But there are limitations – the objective is to identify the ‘best interests’ of the incapacitated person, and reaching agreement between members of a dysfunctional family vying for control may not achieve this.

THE ‘SECRET COURT’
There will always be those who, having exhausted or rejected the appeal process, seek publicity as a means of expressing their dissatisfaction with the outcome. Inevitably they only put forward their side of the case and omit aspects that may have been seen by the court as determinative. Certain elements of the press are all too willing to present this, with some embellishment, as a serious injustice. Those newspapers that condemn the Court of Protection as a secret court interfering in the lives of decent people would, on another day, criticise a system that allowed a vulnerable person to be exploited or abused. They cannot have it both ways! Certainly judges must be prepared to make available reasoned judgments, anonymised in their discretion, but I am far from satisfied that public hearings are the answer. Restricted access by the press is now possible but cases will still be reported in an unbalanced way according to a pre-determined agenda. My experience in the civil courts is that the public find hearings boring and those who attend are generally supporters of one party, which can be intimidating to the other party. If I were involved in a family dispute about the future of my elderly parent or
learning disabled son I would not wish this to take place in a public arena and would question the motives of anyone who did.

THE WAY FORWARD
Applying lofty principles with impeccable legal logic in a society with limited public resources may not be in the best interests of vulnerable people. It is simply not realistic to require judicial scrutiny on an annual basis of the care arrangements for every individual receiving intensive care and supervision or to assume that there are impartial supporters available who can facilitate decisions without influencing those whose capacity is impaired. My solution would be to direct the available resources into the delivery of care and rely upon a ‘whistle blowing’ regime with judicial resources being reserved for those situations where intervention may be required. That would avoid intrusive and unnecessary scrutiny of those situations where there is no cause for concern. It would be necessary to develop procedures whereby family and carers were
aware of how to express their concerns and to expand the role of IMCAS to actively seek out those without this safeguard. It would be better for them to be employed and trained by a central government agency rather than the authorities whose conduct they may be required to question.

CONCLUSION
I have lived the world of the lawyer/advocate and then the judge, and am now moving towards the viewpoint of the consumer of the Mental Capacity legislation. We must never overlook the fact that it is for the benefit of that person, not the lawyers, that this valuable jurisdiction and the Court of Protection exist.

As always, I wish to thank my fellow contributors for their dedication and encouragement, and James Beck from the Office of the Official Solicitor for his contribution on the work of his office. We have endeavoured to present the law as at July 2015.

This is not the first book that I have produced over the past three decades – it all started with Mental Handicap and the Law in 1992 – but it may prove to be the last. I wish to thank the many readers who have expressed their interest and support. It remains my hope that my initiatives in these areas during the intervening years may be continued by other dedicated lawyers in the decades ahead. That would be a fulfilling legacy.

Gordon R Ashton OBE
Grange-over-Sands
July 2015

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