|
Briefing 3: Structures and Safeguards under the Mental Capacity Act 2005
This briefing is one of a series about the Mental Capacity Act 2005 (MCA) which came into force on 1 October 2007 and provides an overview of the main structures and safeguards of the MCA.
1. Capacity and best interests
1.1 Meaning of capacity
1.2 Best interests
2. Court of Protection
2.1 What is the Court of Protection?
2.2 When should an application be made?
2.3 Who can make an application?
2.4 Rights of appeal
2.5 Overview
3. Deputies
3.1 Does an individual require a deputy?
3.2 Personal welfare decisions
3.3 Restrictions on a deputy’s powers
3.4 Overview
4. Who ensures that the decisions of the Court of Protection are carried out?
5. What support is available for those who lack capacity?
5.1 Who qualifies for IMCA support?
5.2 When will an IMCA be appointed?
5.3 What will an IMCA do?
6. Further information
1. Capacity and best interests
The MCA creates a framework to provide both empowerment and proper protection for people who cannot take all decisions for themselves. It contains provision for deciding whether people have the mental capacity to make decisions for themselves and for making decisions on behalf of people who lack the mental capacity to make such decisions. These decisions can be financial decisions or health and welfare decisions.
1.1 Meaning of capacity
The meaning of capacity is discussed more fully in Mental Capacity Act 2005 Briefing 1: Overview and Key Provisions of the Mental Capacity Act 2005.
The MCA explains what is meant by incapacity. It provides that "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."
There is a presumption that a person has capacity unless it is proved otherwise. In addition, a person is not to be treated as unable to make a decision unless all practicable steps have been taken to help him nor should a person be treated as unable to make a decision merely because he or she makes an unwise decision.
1.2 Best interests
The MCA states that anything done or decision made on behalf of an incapacitated person must be done or made in that person’s best interests. In deciding what is in the person’s best interests, the decision must not be made merely on the basis of the person’s age or appearance nor should account be taken of any condition or behaviour which might cause other people to make unjustified assumptions.
The MCA provides structures and safeguards for the protection of people that lack capacity by creating a new Court of Protection, court-appointed deputies and Independent Mental Capacity Advocates (IMCAs).
2. Court of Protection
2.1 What is the Court of Protection?
The Court of Protection is a specialist court that regulates how important decisions are made for adults who lack capacity. The court enables proper decisions to be made and concerns or disputes to be resolved. It deals with the management of property and financial affairs and resolves serious decisions affecting the health and personal welfare of those who lack capacity to make those decisions for themselves. Each decision that is made under the MCA is time and issue specific, which means that just because a person may lack the capacity to make one decision does not mean that he or she lacks the capacity to make a different decision. The court also has the power to make a declaration about whether a person has capacity to make an informed decision in the particular circumstances.
The Court of Protection must make the decisions in the best interests of the person lacking capacity. The new court can sit anywhere in England and Wales. It has the power to make decisions on behalf of an individual, or to appoint a deputy to make the decisions. The court cannot supply the consent of an incapacitated individual.
The Court of Protection supervises the framework set out in the Act and has the power to:
- decide whether a person has the capacity to make a particular decision for themselves;
- make declarations, decisions or orders on financial or welfare matters, including deciding where a person is to live and giving or refusing consent to health treatment for individuals that lack the capacity to make the decision;
- appoint deputies to make the above decisions where an individual lacks the capacity to make the decision;
- rule on the validity of Lasting Powers of Attorney (LPAs) and Enduring Powers of Attorney (EPAs);
- remove deputies or attorneys that fail to carry out their duties.
For further information about LPAs and EPAs please see Mental Capacity Act Briefing 2: Financial Decisions under the Mental Capacity Act 2005.
If a deputy is appointed the court will grant the deputy only limited powers to do what is needed, at that time, in relation to the decision in question. The deputy’s appointment can be withdrawn, or powers modified, if the Court considers that the deputies past, present or future acts will not be in an individual’s best interests.
The Court of Protection has the power to ask for reports to assist with reaching a decision in a case. The court can ask for reports, either written or oral, to be made by the Public Guardian, a Court of Protection Visitor, NHS body or a local authority. The court will set out all of the matters that must be included in the report.
2.2 When should an application be made?
An application should be made to the Court of Protection when someone needs to be granted the authority to make decisions in respect of health or welfare decisions of a person who lacks capacity. An application to the court may be necessary for:
- decisions that are particularly difficult;
- disagreements that have been unable to be resolved through any other route, such as using the appropriate complaints procedure, involving an IMCA, or mediation;
- situations where ongoing decisions will need to be made about personal welfare for an individual lacking capacity to make those decisions.
A court order will usually be necessary for decisions about property and affairs. This will include financial decisions unless the individual’s only income is state benefits, or they have previously made an EPA or LPA giving a person the power to make such decisions. Receivers appointed before the MCA came into force will be treated as deputies.
2.3 Who can make an application?
Generally, the court's permission will be needed before an application can be made. There are certain categories of people who can apply to the court without the need for permission. These include:
- a person who lacks, or is alleged to lack, capacity (or anyone or body who has parental responsibility if the person is under 18 years of age);
- the donor of, or attorney appointed under, an LPA to which it relates;
- a court appointed deputy acting for the person concerned;
- where there is an existing order of the court that names a person to be involved, the person named can apply without the need for permission if the application relates to the matters raised in the existing order.
Beyond these categories it is likely that permission will be required. When deciding whether to grant permission the court must have regard to:
- the applicant’s connection to the person that lacks capacity;
- the reasons the application is being made;
- the benefits to the person lacking capacity of the application;
- whether the benefit can be achieved in any other way.
The MCA is quite flexible about who can make an application. It will depend on the situation under consideration. If there is a dispute between family members, an aggrieved family member can consider whether to involve the court. If the dispute is about healthcare, the NHS Trust, or any other body responsible for healthcare, should make the application. A local authority that wants to get involved in issues relating to personal welfare should make the application.
The person that lacks capacity to make the necessary decision should, in most cases, be a party to the proceedings. If the person lacks capacity to instruct a solicitor, a litigation friend should be appointed. This person will provide instructions on behalf of the person lacking capacity. The litigation friend could be a friend, relative or attorney. If there is no one able to act as litigation friend the Official Solicitor will be appointed. If the person lacking capacity is entitled to public funding the litigation friend will be able to apply for funding on behalf of the individual.
For further information about public funding please approach a solicitor that has a Legal Services Commission (LSC) contract (see "Further information" below).
2.4 Rights of appeal
The right of appeal against a decision of the Court of Protection is covered by section 53 of the MCA, but is outside the scope of this briefing. If you wish to appeal against a decision of the court we would advise that you seek further legal advice.
2.5 Overview
The Court of Protection has wide ranging powers to make declarations, decisions and orders affecting people who lack capacity. It can appoint deputies, and has the power to remove them, or attorneys acting under an LPA, who act improperly. In addition, the court also has the power to make declarations as to whether an act already carried out by an unauthorised person was lawful.
It is hoped that applications to the Court of Protection will be a "last resort" when those involved with an individual’s care cannot reach agreement.
3. Deputies
Sometimes it may not be practicable for the court to make a single decision. This may be the case where the court thinks that future decisions may need to be made. A deputy is likely to be appointed when there is an ongoing series of decisions that will need to be made to resolve an issue. Most deputies are likely to be family members of the person lacking capacity. A spouse has no legal right to be appointed as deputy. If the decision(s) about affairs or care needs is complex the court may appoint a deputy who is independent of the family. No time limits are attached to the appointment of a person as a deputy.
The court will decide the extent of the powers to be given to the deputy. Those who apply to become deputies would need to show why the appointment of a deputy is necessary. The court will decide whether the proposed deputy is reliable and trustworthy and has the appropriate level of skill and confidence to carry out the duties. A deputy will require different skills depending on what decisions are to be made. The court can change the powers of the deputy and remove the deputy. The Public Guardian is required to supervise deputies (see below).
If a deputy has been appointed to a person who has the capacity to make some decisions the deputy must allow them to make those particular decisions.
A deputy can be the holder of a specified office, such as the Director of Social Services. Where more than one person is appointed they can act jointly or jointly and severally, which means that they must either act together with the agreement of all others (jointly), or can act independent of each other (severally). Alternatively, they can act jointly on some matters, and severally on others.
A deputy can claim reasonable expenses and, if the court directs, can be paid for services. The person for whom the deputy acts will pay the expenses and costs.
Before a person accepts an appointment to be a deputy they must think about whether they have the skills and abilities to carry out the deputy’s functions and whether they actually want to take on the responsibilities and duties of a deputy.
3.1 Does an individual require a deputy
Whether a person lacking capacity requires a deputy will depend on:
- the individual’s circumstances;
- whether there will be ongoing decisions, or decisions to be made in the future; and
- whether the appointment concerns decisions about property and affairs or personal welfare.
If a person lacks capacity to make decisions about property and affairs, which includes financial affairs, the court will appoint a deputy.
3.2 Personal welfare decisions
Deputies for personal welfare decisions, including healthcare, will only be required in more difficult cases where:
- there are important and necessary decisions that cannot be taken without the court’s authority;
- there is no other way to settle the matter in the individual’s best interests; or
- the court’s authority is required to carry out important and necessary actions.
An example would be where there is a family dispute about the matter, which may not be decided in the best interests of the person lacking capacity unless a deputy is appointed to make the decisions.
3.3 Restrictions on a deputy’s powers
A deputy has no authority to make decisions or take action in the following circumstances:
- If something they do is intended to restrain the individual. There are some circumstances that may be permissible, which are set out in detail in chapter 6 of the Code of Practice;
- If they think the individual has the capacity to make that particular decision;
- If the decision of the deputy goes against that of an attorney acting under an LPA, which would have been granted before the individual lost capacity;
- A deputy cannot refuse the provision or continuation of life sustaining treatment – only the court can make this decision.
If a deputy fails to perform their duties the Court of Protection can remove them. Other people involved in the life and/or care of the individual lacking capacity should always be told when a deputy has been appointed and what the deputy can do. The court will provide the deputy with a document that sets out their duties. If a deputy does not act when a decision or action is required they could be in breach of their duty.
3.4 Overview
The Court of Protection will appoint a deputy when necessary. The deputy MUST always act in the best interests of the person lacking capacity. The deputy must consider whether the individual has the capacity to make the decision themselves and, if they do not at that time, consider whether the individual might regain the capacity in the future. If this is the case, they must then consider whether the decision can wait until the individual does have the necessary capacity.
4. Who ensures that decisions of the Court of Protection are carried out?
The Office of the Public Guardian regulates the decisions of the Court of Protection. The Public Guardian is responsible for ensuring that people chosen to make decisions on behalf of those who lack capacity do so properly and do not abuse their positions.
The Public Guardian will make enquiries and refer cases to the Court of Protection where there are concerns about deputies or attorneys.
The Public Guardian’s Office duties include:
- registering LPAs and deputies;
- supervising deputies appointed by the Court of Protection;
- providing evidence to the Court of Protection; and
- providing information and guidance to the public.
The Public Guardian also works with a range of agencies, such as the police and social services, in order to be able to respond to any concerns which may be raised.
The Office of the Public Guardian has a Customer Service Unit that gives advice on the Mental Capacity Act, provides leaflets and information on who can make an application and assist those when making an application to the Court of Protection.
5. What support is available for those who lack capacity?
The IMCA service is a new service that provides independent representation and support for vulnerable people who lack capacity and have no one else to support them when important decisions are being made. The IMCAs will carry out investigations about a person and the care or treatment that is proposed to help to ensure they are provided with the best available options. When an IMCA provides their findings the NHS body or local authority must take it into account when determining what decisions are in the best interests of the person concerned.
5.1 Who qualifies for IMCA support?
People who qualify for IMCA safeguards are those who lack capacity in relation to the specific circumstances and decisions to be made and have no one close to them who would be appropriate to help make the decision, other than the professionals engaged in their care. People who do have family members or close friends who are able and willing to represent their views and wishes will not be eligible for IMCA assistance.
5.2 When will an IMCA be appointed?
IMCAs will be appointed as safeguards for people in the following situations:
- decisions relating to providing, withholding or withdrawing serious medical treatment, including treatment for mental disorder;
- where it is proposed to move a person into long term care in hospital or a care home and the stay in hospital will be longer than 28 days or the stay in the care home will be longer than eight weeks; or
- where a long-term move to a different hospital or care home is proposed.
When any of the above situations occur the NHS body and local authority are under a duty to make sure that advice is sought from an IMCA. This duty does not apply in the following situations:
- When the proposed treatment needs to be provided as a matter of urgency, for example to save a persons life or to prevent a serious deterioration in their condition; or
- Where a proposed placement needs to be made as a matter of urgency, for example an admission to hospital or where a person would be made homeless unless admitted to a care home.
N.B. An IMCA does not need to be consulted if the person is being detained under the provisions of the Mental Health Act 1983.
An IMCA may be involved in decisions about a care review or an adult protection case. In adult protection cases an IMCA may be appointed even when there are family members or other people involved with the person’s care that could be consulted.
5.3 What will an IMCA do?
IMCAs have the statutory power to visit and consult privately with a person. They have the right to inspect, and take copies of, any records (such as clinical records, care plans or social care assessment documents) which the holder of the records considers are relevant to the IMCA’s investigation.
Other functions of the IMCA will include:
- representing and supporting the person who lacks capacity, so that the person may participate as far as possible in any relevant decision;
- obtaining and evaluating information;
- ascertaining a persons wishes and views, beliefs and values, or what these would be likely to be;
- ascertaining alternative courses of action, for example looking at different care arrangements or services that would allow a person the most freedom;
- obtaining a second medical opinion, where necessary.
When providing representation the IMCA should take into account the Code of Practice, ensure that due regard has been given to the guiding principles, establish that the least restrictive options have been considered and check that there has been compliance with the matters set out in the best interests’ checklist.
If an IMCA is of the opinion that their submissions or a person’s opinions have not been given the weight they should when a decision is being made then they have the power to challenge or assist the person in challenging the decision. The IMCA can make a formal complaint to the relevant body and, if necessary, refer the case to the Court of Protection.
6. Further information
This legal briefing relates only to the law of England and Wales in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice.
For further information about the work of Mind's legal unit, please refer to our information sheet, Introduction to the Legal Unit. This is also available in hard copy (T: 020 8519 2122).
The Office of the Public Guardian (OPG) is the first point of contact for anyone seeking advice or information about the MCA (T: 0845 330 2900). Its website (www.publicguardian.gov.uk) contains a range of information about the Mental Capacity Act, Lasting Powers of Attorney and how to make an application to the Court of Protection.
For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, T: 0870 606 2555) or from Community Legal Advice (www.communitylegaladvice.org.uk, T: 0845 345 4345). Alternatively, you could contact your local Law Centre or Citizen’s Advice Bureau, who may be able to help.
Legal Unit
Mind
Granta House
15-19 Broadway
London E15 4BQ
December 2007
|