Care proceedings may involve parents who are said to ‘lack capacity’. In this post we will discuss what that means and what are the implications for the care proceedings.
The Law – the Mental Capacity Act 2005
The Mental Capacity Act came into force in 2007 and provides a statutory framework for people who lack capacity to make decisions for themselves, or who want to prepare for possibly losing their capacity in the future.
It sets out who can take decisions for people who lack capacity, in which situations, and how they should go about this There is a Code of Practice that needs to be read along side the Act. The Act covers England and Wales and applies to everyone who is over 16 years of age.
You must keep this Act separate from the Mental Health Act 1983 – that Act deals with people who have been diagnosed with a mental health problem that is so serious they pose a risk to themselves or other people and therefore they need to be detained and treated, even if this is against their will.
The Mental Capacity Act applies to everyone who looks after someone who lacks capacity to make particular decisions for themselves. This includes social workers and doctors, as well as family or professional carers.
Key principles of the MCA
These are set out at section 1 of the Act.
- Presumption of Capacity. All adults have the right to make decisions for themselves unless it can be shown that they are unable to make them. You can’t assume someone can’t make decisions just because they have a particular disability.
- Maximising Decision Making Capacity. Everyone should be given all the help and support they need to make a decision before anyone concludes that they cannot make their own decision. For example, some people with learning disabilities find it much easier to understand information that is presented in pictures, rather than lots of words.
- Right to be Unwise. Making an unwise or eccentric decision doesn’t automatically mean you lack capacity; people are allowed to make decisions that others might think unwise.
- Best interests. Any actions taken or decisions made on behalf of someone who lacks capacity must be done in their best interests, after considering what is known about their preferences. Try to involve the person who lacks capacity as much as possible.
- Least Restrictive Option. People who lack capacity should not be restricted unnecessarily; when making decisions for someone else you need to be careful to examine if what you are doing poses the least interference with that person’s freedoms.
The Court of Protection
It was established by section 45 of the MCA. It can:
- decide whether a person has capacity to make a particular decision for themselves;
- make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
- appoint deputies to make decisions for people lacking capacity to make those decision;
- remove deputies or attorneys who fail to carry out their duties.
The Court of Protection Rules of 2007 have been amended by new rules which come into force in April and July 2015 – see this blog post by Lucy Series which discusses the important changes they make to issues of transparency and participation.
See further the website www.courtofprotection.com for more information and discussion.
What does ‘lack of capacity’ mean?
An inability to make decisions
Someone is said to lack capacity if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.
There is an interesting post here by suesspicious minds about someone who was said to lack capacity due to his alcoholism; the court heard evidence from a variety of sources and decided that he did have capacity.
If you ‘lack capacity’, to make a certain decision, this is more serious than just being unable to make up your mind or finding a particular decision difficult; someone who lacks capacity will generally find it hard to understand information, retain it or weigh it up and then communicate their decision to someone else.
Lack of capacity is defined in section 2 of the MCA:
(1) For the purposes of this Act, 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.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a )a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
Section 3 of the MCA sets out what is meant by an inability to make decisions. A person is considered unable to make a decision for himself if he is unable:
- to understand the information relevant to the decision,
- to retain that information,
- to use or weigh that information as part of the process of making the decision, or
- to communicate his decision (whether by talking, using sign language or any other means).
A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
If a person ‘lacks capacity’ to take part in legal proceedings, that doesn’t necessarily mean they can’t make any decisions at all – it may depend on the seriousness and complexity of the decision before them. For example, a decision about what to have for lunch is much less taxing than a decision about what instructions to give your lawyer in court.
The leading case discussing the test to determine capacity remains Masterman-Lister . The test of capacity which was identified here has been incorporated into the MCA 2005.
I am told I need an assessment of my capacity – what does this involve?
An assessment of someone’s lack of capacity is covered at para 4.38 of the Code of Practice. This is an important issue which needs to be dealt with quickly as it can have serious consequences for care proceedings, both in terms of necessary assessments and the fairness of the court process. The court should consider issues of capacity at the earliest opportunity. Your lawyer is under an obligation to raise this issue as soon as they have any doubts about your capacity to instruct them.
The court does not require expert evidence from a psychologist or psychiatrist in order to make a decision that you do or do not have capacity, but these experts are often asked to provide an assessment.
However, if it is very clear a person lacks capacity – due to being in a coma for e.g. – then the court is likely to be satisfied by just a letter from the treating doctor.
The Code of Practice considers the necessary practical steps for someone who is assessing capacity . The assessor must understand what the person being assessed is asked to decide about. The assessor must also bear in mind the five principles of the MCA as set out above and start from the presumption that the person has capacity.
The assessor should explain all the information relevant to the decision. The explanation must be in the most appropriate and effective form of communication for that person.
See para 4.49 of the Code of Practice.
- Check the person’s understanding after a few minutes. The person should be able to give a rough explanation of the information that was explained. There are different methods for people who use non- verbal means of communication (for example, observing behaviour or their ability to recognise objects or pictures).
- Avoid questions that need only a ‘yes’ or ‘no’ answer (for example, did you understand what I just said?). They are not enough to assess the person’s capacity to make a decision.
- But there maybe no alternative in cases where there are major communication difficulties. In these cases, check the response by asking questions again in a different way.
- Skills and behaviour do not necessarily reflect the person’s capacity to make specific decisions. The fact that someone has good social or language skills, polite behaviour or good manners doesn’t necessarily mean they understand the information or are able to weigh it up.
- Repeating these steps can help confirm the result.
The British Medical Association publish a useful interactive tool to help doctors assess a patient’s capacity.
What follows from an assessment that you lack capacity
Appointment of a ‘litigation friend’
In family proceedings, if a person is found to lack capacity then they become a ‘protected party’. and they will need a ‘litigation friend’ who will conduct the proceedings on their behalf.
See Part 15 of the Family Procedure Rules, Practice Direction 15A and Practice Direction 15B and this guidance.
According to the Practice Direction, a litigation friend must
fairly and competently to conduct proceedings on behalf of a protected party. The litigation friend must have no interest in the proceedings adverse to that of the protected party and all steps and decisions the litigation friend takes in the proceedings must be taken for the benefit of the protected party.
Anyone can be a litigation friend, as long as they can meet the requirements of the rules and Practice Directions. The requirement that you must not have an interest in the proceedings which might be against the interests of the protected party may mean it is not sensible to have a close family member acting as a litigation friend – see the case of P v Nottingham in 2008, discussed below, where the mother’s parents and brother had put themselves forward as litigation friends but were also putting themselves forward to care for her child. The court held they should not have been appointed.
The Official Solicitor
The court may invite the Official Solicitor to act as the litigation friend. The Official Solicitor provides access to the justice system to those who are vulnerable by virtue of their young age or lack of mental capacity.
However, it should be noted that the OS’s department has only about 20 lawyers and 40 caseworkers. It has very little spare capacity. Therefore, the OS should only be invited if there is no other person suitable or willing to act.
- See the note of the OS’s position on being invited to act as a litigation friend
- the 2014 checklist for the appointment of a litigation friend
- For discussion of the role of the OS and also judicial reaction to John Hemming’s allegations of corruption in the family justice system, see P v Nottingham CC . This case went all the way to the European Court – which dismissed complaints that the mother’s Article 8 and 6 rights had been breached by the appointment of the OS.
Court of Protection rules
Part 17 of the Court of Protection 2007 rules which governed the appointment of litigation friends in the Court of Protection has now been replaced by the Court of Protection (Amendment) Rules 2015.
Lucy Series describes the impact of these amendments:
The amended rules now allow a person to be represented by an ‘accredited legal representative’ or even just a ‘representative’ without a litigation friend. An accredited legal representative is defined as ‘a legal representative authorised pursuant to a scheme of accreditation approved by the President to represent persons meeting the definition of “P” in this rule in proceedings before the court’. So presumably the President will shortly announce a scheme of accreditation for certain lawyers who can represent the relevant person without taking instruction from a litigation friend. I would be really interested to see whether this may lead to changes in how they represent the person – for example, will we see a move towards a more adversarial model, like that adopted in the Mental Health Tribunals, where representatives basically argue for what the person wants and not for what they don’t want, rather than arguing for what (in their view) is in the person’s best interests?
Can I still give evidence in my case if I am found to lack capacity?
See para 1.4 and 1.5 of the Practice Direction.
Where the court determines that a party does not have capacity to conduct the proceedings, the court may well also have to determine whether that party is able to give evidence and if so whether ‘special measures’ are required. Expert evidence is also likely to be necessary for the court to make such determinations. However, as in relation to the question of litigation capacity, the court may consider that evidence from a treating clinician who has a good understanding of the party’s difficulties may be sufficient. If the treating clinician is provided with information about the legal framework, the clinician may be able to provide that evidence more readily and more quickly than an expert instructed to give an opinion as to the party’s ability to give evidence.
Where the protected party is able to give evidence, the representative will wish to consider (and ask the expert to consider) the impact on that party of giving evidence. When making a determination as to whether that protected party should give evidence, the court may need to consider whether the impact of giving evidence would be so adverse to their condition that it would not be in that party’s best interests to do so. The representative may put forward an argument on behalf of the protected party that the protected party should not give evidence.
I don’t agree I ‘lack capacity’ – what can I do?
Capacity can fluctuate over the course of proceedings. See para 4.1 of the Practice Direction 15B:
Litigation capacity may be lost or regained during the proceedings as a result of deterioration or improvement in the impairment of, or disturbance in the functioning of, the party’s mind or brain. The necessity for expert evidence or evidence of a treating clinician as to a party’s capacity can therefore arise at any time during the proceedingsThe assessor should give reasons why they believe the person lacks capacity to make the decision, and provide objective evidence to support that belief. The assessor must also show they have applied the principles of the Mental Capacity Act.
Therefore, even if you were assessed at the start of proceedings as lacking capacity, you could argue that the situation has now changed.
If you simply don’t accept the first assessment, It might be possible to get a second opinion from an independent professional or another expert in assessing capacity. Chapter 15 of the Code of Practice offers other suggestions for resolving disagreements over the issue of capacity, such as mediation. But this may not be practicable if you are in care proceedings and decisions have to be made quickly. Your best option may be simply to apply to the court to get another assessment.
Restrictions on freedom of movement under MCA
What are the Mental Capacity Act 2005 Deprivation of Liberty Safeguards?
An important question is whether or not living arrangements made for someone who is mentally incapacitated amount to a ‘deprivation of liberty’. If they do, that deprivation has to be authorised.
The Deprivation of Liberty Safeguards (DoLs) set out in the MCA apply to anyone in a care home or hospital. These provide an independent check on whether or not these arrangements are made in the best interests of that person. If the person is living somewhere other than a hospital or care home, the Court of Protection must authorise that placement.
As Lady Hale said in the Cheshire West case (which we discuss below):
It is merely a recognition that human rights are for everyone, including the most disabled members of our community and that those rights include the same right to liberty as everyone else.
DoLs were introduced by the MCA after the UK was found to be in breach of Article 5 of the ECHR in 2004. Article 5 protects people’s right not to be deprived of their liberty unless this is due to a small number of limited circumstances, such as being convicted of a crime.
The safeguards involve:
- an independent assessments of a person’s capacity to consent to care arrangements and consideration of what is in their best interests.
- those being assessed are entitled to assistance from a representative, an independent advocate and non-means tested legal aid to appeal against their detention in the Court of Protection.
What does ‘deprivation of liberty’ mean?
EDIT – The Government on 14th March 2018 published its response to the Law Commission’s Mental Capacity and Deprivation of Liberty report. The headline is that the Government “agree[s] in principle that the current DoLS system should be replaced as a matter of pressing urgency,” and that it will legislate in due course. Before the introduction of any new system, the Government has said that it will “need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.”
The circumstances in which someone can be said to be ‘deprived’ of their liberty have caused much discussion and debate, particularly when considering people who would end up with restrictions placed on their freedoms wherever they went, to stop them hurting themselves.
This issue finally got before the Supreme Court in 2014 in the case of Cheshire West. The court decided that the essential questions they needed to ask were:
- Is the person subject to continuous supervision and control?
- Is the person free to leave?
It was NOT relevant to the issue of whether or not someone had been deprived of their liberty to say that they did not object or they were living in a relatively ‘normal’ placement. As Lady Hale said in paragraph 46 of her judgement in Cheshire West:
…But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.
For a different view about the philosophical arguments that underpin our understanding of what makes a ‘deprivation of liberty’ see the judgment of Mostyn J in Rochdale MBC v KW  discussed here at the Mental Capacity Law and Policy blog. The Judge commented at paragraph 7 of his judgment that he found it impossible:
…to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5. If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.
At paragraph 17 he set out his fundamental disagreement with the majority of the Supreme Court:
It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5.
Mostyn J remains bound by the decision of the Supreme Court. However, The Law Commission are currently reviewing this area of law around deprivation of liberty and hope to report by 2017. The report will consider how deprivation of liberty should be authorised and supervised in hospitals, care homes and community settings, where it is possible that Article 5 rights would otherwise be infringed. This will include considering the legislation underpinning DoLS in its entirety.
- For a useful discussion of issues around mental capacity, see this booklet from the Department of Justice: ‘Making Decisions, a guide for family, friends and other unpaid carers’.
- See the Guide to the Mental Capacity Act published by Mind.
- There is guidance from the University of Manchester ‘Acting as a Litigation Friend in the Court of Protection’ which was commissioned by the Department of Health.
- For more information about the MCA and links to many useful blogs about mental health and capacity, see ‘Resources on the MCA 2005’ from the Small Places blog.
- Barrister Victoria Butler-Cole has written a guide to the Court of Protection for non-lawyers.
- The Mental Capacity Law and Policy blog maintained by barrister Alex Ruck Keene, aims to promote better, clearer thinking amongst lawyers, policy-makers and professionals as to the operation of the Act.
- Mental Health Law online is an iternet resource on mental health law in England & Wales, primarily for mental health practitioners, to which anyone can contribute.