The Mental Capacity Act 2005 sets out how decisions to determine whether a person has or lacks the mental capacity required to make a particular decision, if there is evidence to suggest the presumption of capacity may not apply. If, following assessment, a person is deemed to lack capacity to make a specific decision, Section 4 of the Mental Capacity Act 2005 requires any decisions to be made on behalf of P in their ‘best interests’. Often, the people involved with P such as family members, Attorneys, Deputies, and health and social care professionals will disagree as to whether a person has or lacks capacity, and if P lacks capacity, what is in a P’s best interests. If disputes cannot be resolved through collaborative decision-making, it may be necessary to make a Welfare application to the Court of Protection.
What is mental capacity?
A person’s mental capacity refers to a person’s ability to make specific decisions or take actions that influence their life. Capacity is date, time and decision specific. For example, a person may have the capacity to decide where to live or to receive care but may lack capacity to make decisions about their finances.
The 5 guiding principles of the Mental Capacity Act 2005
The Mental Capacity Act 2005 establishes the following key principles:
- A person must be assumed to have capacity unless it is established that he or she lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- 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.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Presumption of capacity
A fundamental principle of the Mental Capacity Act 2005 is that any person must be assumed to have capacity to make a decision, unless it is established otherwise. P has nothing to prove. To determine a lack of capacity to make a particular decision requires assessment.
How is a lack of capacity determined?
The law gives a very specific definition of what it means to lack capacity for the purposes of the Mental Capacity Act 2005. This is a legal not medical test. Section 2 of the Act states:
“A person is deemed to ‘lack capacity’ in relation to the decision in question if he or she 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”.
This test can be broken down into 3 questions to help with its application:
- Is the person unable to make a decision? If so:
- Is there an impairment or disturbance in the functioning of the person’s mind or brain? If so:
- Is the person’s inability to make the decision because of the identified impairment or disturbance?
It must be possible to explain how the impairment or disturbance has caused the inability to make a decision. There must be a causal link.
More information regarding the fundamental principles of mental capacity can be found by clicking here to access our mental capacity information sheet.
If a person lacks the mental capacity to make a decision, or take a particular action, who should make the decision?
If it is established that a person, referred to as “P”, lacks the mental capacity to make the specific decision in question, the decision will need to be made in P’s ‘best interests’ in accordance with Section 4 of the Mental Capacity Act 2005.
What does ‘best interests’ mean? Is there a ‘best interests’ decision-making process to be followed?
The concept of ‘best interests’ is not defined in the Mental Capacity Act 2005. Instead, Section 4 sets out a checklist of factors that must be considered whenever a person is determining what is in P’s best interests. Assessing what is in P’s best interests is therefore a process.
The non-exhaustive checklist of factors that must be considered when determining what is in P’s best interests includes:
- P’s past and present wishes and feelings.
- The beliefs and values that would be likely to influence the decision if P had capacity, and any other factors that P would be likely to consider if P were able to do so.
- The views of others, such as anyone engaged om caring for P, family members, an Attorney or court appointed Deputy.
For complex decisions, such as where P should live and receive care, all the relevant evidence and available options should be discussed and documented at a round table or ‘best interests’ meeting using a balance sheet approach.
More information regarding best interests decision-making is available by clicking here to access our best interests decision-making information sheet.
If a person lacks capacity, how should decisions relating to residency, care and treatment be made?
Using the best interests decision-making in accordance with Section 4 Mental Capacity Act 2005. Even where an individual is deemed to lack capacity, P should be supported to participate in supported decision-making.
For anyone in receipt of care and support funded by social care or the NHS, care and treatment decisions must still be made in a manner which is complaint with the Mental Capacity Act 2005.
What is the difference between a Lasting Power of Attorney and a Deputyship?
A Lasting Power of Attorney is a document that enables a person with capacity to appoint attorney(s) to make decisions for them in relation to their property and finances, or health and welfare. The document can only be used once it has been registered with the Office of the Public Guardian (OPG) and when the person making it (the donor) has stipulated that it can be used.
If a person lacks capacity (P) to make decisions, and a Lasting Power of Attorney is not in place, it is possible to apply to the Court of Protection to request that a Deputy be appointed.
It is worth noting that the appointment of a Personal Welfare Deputy where P lacks capacity to manage health & welfare, is far less common, than the appointment of a Property & Financial Affairs Deputy. The law relating to when the Court of Protection may appoint a Personal Welfare Deputy is complex.
Click here to access our information sheet which explains health & welfare lasting powers of attorney, deputyships, and welfare applications in more detail. For information relating to property and financial affairs powers of attorney click here and for property and financial affairs deputyships click here.
What happens if a person lacking capacity is deprived of their liberty?
In any situation where a Hospital or Care Home proposes to deprive a person who lacks capacity of their liberty by virtue of their care arrangements without the person’s consent, such a deprivation will need to be authorised by a Deprivation of Liberty Safeguard, commonly referred to as a DOLS.
How is a deprivation of liberty determined?
A person will be deemed to be deprived of their liberty if the person, P, lacks capacity to make a decision about where to live and receive care and:
- P is under continuous or constant supervision and control; and
- P is not free to leave his or her residence.
Is there a process for a deprivation of liberty to be authorised?
Yes. A standard authorisation must be requested where it appears that P is, or will, within 28 days, be accommodated in a Hospital or Care Home in circumstances amounting to a deprivation of liberty.
Urgent authorisations may be self-granted by a Hospital or Care Home for up to 7 days (and maybe extended for a further period of 7 days) by a Supervisory Body (a Local Authority) upon request.
Upon receipt of a DOLS application from a Hospital or Care Home, a Local Authority must arrange a Best Interests Assessor and a Mental Health Professional to complete a series of assessments to determine whether P meets 6 qualifying requirements.
Can a DOLS be challenged?
Yes. P has an absolute right to challenge a DOLS through the RPR, or where there are delays to the RPR making the application, the Local Authority will have a duty to make an application if they are aware that P is objecting to the DOLS. The process of challenging a DOLS is known as a Section 21A challenge.
For more information regarding the DOLS assessment process, what an RPR means, the 6 qualifying requirements for a DOLS to be granted, and the Section 21A application process, click here to access our DOLS information sheet.
How does Coronavirus (COVID-19) impact mental capacity?
Issues which require careful consideration in the context of COVID-19 include:
- The practicalities involved with regard to assessing mental capacity and best interests. Face-to-face assessment may not be possible.
- The options available when making best interests decisions on behalf of P may be reduced.
- Contact between P and an RPR or IMCA may need to be maintained through video link or telephone.
- Restrictions with regard to P’s contact with family and friends may need to be imposed by care providers to protect P and other residents. The recent judgment of Hayden J in BP v Surrey County Council & Anor  considered the issue of contact restrictions for a person subject to a DOLS during the pandemic in detail.
- Whether a person has or lacks the capacity to consent to or refuse COVID-19 testing.
- Whether a person has or lacks the capacity to make decisions about self-isolation and social distancing.
- The relationship between a person with impaired capacity and the restrictions on movement.
- Decisions relating to life-saving treatment and prioritising resources.
Useful COVID-19 mental capacity guidance documents include:
- The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DOLS) during the coronavirus (COVID-19) pandemic.
- MCA and DOLS during the COVID-19 pandemic: additional guidance
- COVID-19: looking after people who lack mental capacity .gov.uk website. This page is regularly updated to reflect new guidelines.
How can our Mental Capacity Act and Court of Protection solicitors help?
At Lester Aldridge, we provide specialist advice and support to individuals and/or their representatives in relation to all aspects of mental capacity law.
Examples of the types of issues we can assist with relating to health and welfare include:
- Advising on how to challenge flawed or disputed capacity assessments.
- Providing representation at best interests meetings, and in cases involving deprivation of liberty safeguards, or residency disputes and cases involving the withdrawal of serious medical treatment.
- When disputes cannot be resolved, through collaborative decision-making using the best interests decision-making process, we can provide representation to issue and participate in a Welfare application in the Court of Protection.
- Advising on Lasting Powers of Attorney, Deputyships, Advance Decisions and future planning. This includes advising with regard to the complexities of the law relating to the appointment of Personal Welfare Deputies.
We can provide:
- An initial, free consultation to discuss your circumstances and how to ensure best interests decisions are made properly when a person lacks capacity.
- The role of an intermediary. We can liaise with all the people involved, and obtain all of the information and evidence required to facilitate a meaningful best interests meeting.
- A draft balance sheet which neatly details all of the available options and the advantages and disadvantages of each option based on the evidence. This can be used to support a best interests meeting and to evidence decision-making.
- Advocacy at best interests meetings to ensure views are represented and taken into account.
- Access to independent experts to help challenge a capacity assessment if the evidence suggests a capacity assessment may be flawed.
- Advice at each key stage and with regard to what steps can be taken to resolve disputes. This may involve an application to the Court of Protection.
- Representation in Court of Protection welfare proceedings.
We also support families and their loved ones with mental capacity act matters relating to property and financial affairs.
Frequently Asked Questions
No. The Community Care team at Lester Aldridge does not hold the Community Care legal aid contract.
Non-means tested legal aid funding is available to anyone who is subject to a DOLS authorisation (i.e. P), regardless of their level of income or capital.
Non-means tested legal aid is not available to a family member, Attorney or Deputy who wishes to be represented in Court proceedings relating to a DOLS challenge by P or to make a welfare application. In these scenarios unless the family member, Attorney or Deputy can satisfy the necessary means tests, the family member, Attorney or Deputy will need to privately fund the cost of instructing Lester Aldridge to provide representation. The appropriate method of funding will depend on the issues to be addressed.