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The Mental Capacity Act 2005 sets out how decisions must be made and states that any decision made on behalf of someone who lacks mental capacity must be made in their best interests. If the people involved, such as family members, attorneys, deputies, or health and social care professionals cannot agree on what to do, disputes can be referred to the Court of Protection.

How can our solicitors help with mental capacity law – Health & Welfare?

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, serious medical treatment or contact disputes.
  • When disputes cannot be resolved, providing representation in relation to Health & Welfare disputes in the Court of Protection.
  • Advising on Lasting Powers of Attorney, Deputyships, Advance Decisions and future planning.

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, 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.

We also support families and their loved ones with mental capacity act matters relating to property and financial affairs.

5 principles of the Mental Capacity Act

The Mental Capacity Act 2005 establishes the following key principles:

  1. A person must be assumed to have capacity unless it is established that he or she lacks capacity.
  2. 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.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. 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.
  5. 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.

See our recent blog on the Mental Capacity Act Amendment Bill (MCA Bill), which explains the key principles of the Mental Capacity Act 2005 (MCA) in more detail and the proposed reforms.

What is mental capacity?

A person’s mental capacity refers to a person’s ability to make specific decisions or to 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.

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. To determine a lack of capacity to make a particular decision requires an 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 as follows:

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 three questions to help with its application:

  1. Is the person unable to make a decision? If so:
  2. Is there an impairment or disturbance in the functioning of the person’s mind or brain? If so:
  3. 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. In other words, there must be a causal link.

Who makes the decision if the person has capacity?

If a lack of capacity cannot be established, it is for the person himself or herself to make the decision,

Who should make the decision if the person lacks capacity?

If it is established that the person lacks the capacity to make the specific decision, the decision will need to made in the person’s ‘best interests’. For decisions relating to medical treatment or care, the decision maker is usually the treatment or care provider.

Click on the links on the right to view more information, download or print our freely accessible mental capacity law – health & welfare information sheets.

Frequently Asked Questions

The Mental Capacity Act 2005 is the law that sets out how decisions must be made on behalf of people who lack the mental capacity to make decisions for themselves. A person must be assumed to have capacity unless and until a lack of capacity has been established and proven.

A specialised court created under the Mental Capacity Act 2005. The Court of Protection’s scope is limited to considering the management of decisions on behalf of individuals whom lack capacity, or may have fluctuating capacity. Decisions are usually divided between property & financial or health & welfare matters.

The law gives a very specific definition of what it means to lack capacity. It is a legal not a medical test. 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.

A Lasting Power of Attorney is a document which 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.

The legal authorisation required to deprive a person who lacks capacity of their liberty without their consent, contrary to the person’s ECHR Article 5 right to liberty. Article 5 simply means a person has the right to be able to move freely without restriction or being held against their will.

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.

In simple terms, this means a challenge by the person who is subject to a DOLS authorisation (i.e. P) to the authorisation itself. Sometimes this is referred to as a Section 21A challenge because P’s Relevant Persons Representative (RPR) has a duty to take forward a challenge if P expresses a wish for the RPR to do so in accordance with Section 21A of the Mental Capacity Act 2005.

As a result of the Mental Capacity (Amendment) Act 2019, DOLS is to be replaced with a new system known as LPS with effect from 1 October 2020. The finer details of LPS are being finalised however, the intention of LPS is to streamline the process for authorising a person’s deprivation and improve the system, which is in place to safeguard and protect a person’s Article 5 right to liberty.

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