Mental capacity

*The law on mental capacity is due to change in 2020, when ‘liberty protection safeguards’ will be introduced – as explained here.*

Under mental capacity legislation, everyone aged 16 and over is presumed to be able to make their own decisions. The following information explains this law and also what happens in situations where someone may lack that capacity.

The Mental Capacity Act 2005 (MCA) is a legal framework for making decisions in the best interests of people who lack the mental capacity to make decisions for themselves. The MCA applies to a very wide range of decisions, including decisions about property and affairs matters, and also health and welfare decisions.

How the Mental Capacity Act works

What is mental capacity?

The MCA defines mental capacity as being able to understand, retain and use or weigh the information relevant to a specific decision, and to communicate your decision (see s3 MCA). A person only lacks mental capacity if they are unable to make a decision because of an impairment of or disturbance in the functioning of the mind or brain (s2 MCA). The MCA’s first principle is that ‘A person must be assumed to have capacity unless it is established that he lacks capacity’; this is known as the ‘presumption of capacity’, and it applies even if people have a condition or behave in a way that might lead others to make unjustified assumptions about their capacity. The second principle of the MCA is that people should not be treated as lacking mental capacity unless all practicable steps to help them to make a decision have been taken without success. The third principle is that people should not be treated as lacking mental capacity simply because they make an unwise decision.

What are best interests decisions?

When people lack mental capacity, the MCA permits third parties to make decisions on their behalf in their best interests, unless the decision can be deferred to a point in the future when the person is likely to gain or regain the mental capacity to decide for themselves. Best interests decision makers must follow a special checklist when making decisions (s4 MCA). They must ‘permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.’ They must consider (so far as reasonably ascertainable) the person’s past and present wishes, feelings, values and beliefs, any written statement they made at a time when they had capacity and any other factors they would be likely to consider if able to do so. Recently the Supreme Court said that the point of this process was to consider matters from the person’s own point of view (Aintree v James, §45. Best interests decision makers must also consult with others who provide care or treatment for a person or who have an interest in their welfare about the person’s best interests, and also on what they think the person’s own point of view is or would be. The MCA says that any acts done or decisions made on behalf of a person who lacks mental capacity must consider the course of action that is least restrictive of their rights and freedoms (s1(6) MCA).

Advance planning

The MCA permits people to plan ahead for possible future loss of mental capacity in two main ways: advance decisions, and Lasting Powers of Attorney.

People who have views about particular medical treatments they would not like to receive, or who would not want to have medical interventions to be kept alive in particular circumstances, can make ‘advance decisions’ which refuse particular treatments in particular circumstances in the event that at that time they lack the mental capacity to give or refuse consent. You can find out more about making an advance decision on the Compassion in Dying website.

It is also possible to appoint a trusted person to act as an attorney to make decisions on your behalf in the event that you lose mental capacity in the future, using a Lasting Power of Attorney (LPA). Different kinds of LPA are available for property and affairs matters and health and welfare matters. The government is encouraging people to make LPAs, as failure to make one can create problems in the event of illness or injury if a person is unable to continue to manage their affairs. You can find out more about making an LPA on the government website.

The Court of Protection

The MCA has a special court – the Court of Protection – to adjudicate on issues about mental capacity and best interests where there is doubt or dispute, or to grant formal authority for certain matters like managing a person’s finances on their behalf. It can also make determinations about the validity of LPAs and advance decisions. The Court of Protection can also appoint ‘deputies’ to make decisions on a person’s behalf; these are usually used where people are unable to manage their financial affairs but have not made an LPA.

Researchers at Cardiff University are currently working on a project about the Court of Protection, and you can read more about that here. The government has also set up a webpage providing information about how to make applications to the Court of Protection.

The deprivation of liberty safeguards

In 2007 the MCA amended to include a framework called the deprivation of liberty safeguards (DoLS) which protect the human rights of people who may be deprived of their liberty in care homes and hospitals. When people are deprived of their liberty under the DoLS they get have rights to advocacy, to a representative (who will often be a family member) and also to non-means tested legal aid for them or their representative to challenge their detention in the Court of Protection.

The deprivation of liberty safeguards have been highly criticised in a number of recent reviews, including by a specially established House of Lords Committee on the MCA. Recently, the Supreme Court handed down an important ruling which defined a person as deprived of their liberty if they were subject to continuous supervision and control and were not free to leave (Cheshire West, 2014). This ruling was intended to ensure that disabled people are not discriminated against by having lower levels of human rights protection than others, but it has caused significant problems with the practical operation of the DoLS. Because of these problems, the Law Commission was asked to undertake a comprehensive review of the DoLS with a view to replacing them. This led to the Mental Capacity Amendment Act 2019, which is due to come into effect in 2020.

Codes of Practice

The MCA has a Code of Practice which any professionals working with the Act, or anybody appointed under an LPA or as a deputy, have a legal duty to have regard to.   There is also an additional Code of Practice for the deprivation of liberty safeguards.

The Codes of Practice are very important sources of guidance and are also written to provide clear and practical advice on the application of the MCA.

Who can make decisions under the Mental Capacity Act?

One of the most common questions about the MCA is who gets to decide on whether or not a person has mental capacity and what is in their best interests. The answer to this question will depend upon what type of decision it is and whether the person has any LPAs or deputies. There are four main ways that decisions can be made on a person’s behalf:

The Court of Protection

Some decisions are so serious that they can only be made by the Court of Protection. These include decisions like non-therapeutic sterilisation, withdrawing artificial nutrition or hydration from a person in a permanent vegetative state or a minimally conscious state, or the donation of an organ or tissue on behalf of a person who lacks mental capacity. These decisions are set out in paragraphs 8.18-8.24 of the MCA Code of Practice.

Where there is a dispute about a person’s mental capacity or best interests, and this is about a serious matter – such as a serious medical treatment, where the person will live, or whom they have contact with – then increasingly the Court of Protection is ruling that professionals must ensure that the dispute is brought to the Court of Protection in a timely fashion.

The Court of Protection can also make ‘one off’ decisions, for example it might authorise a tenancy agreement where a person has no deputy or attorney who can enter into it on their behalf.

Deputies and attorneys

Where a person has a deputy appointed by the Court of Protection, or has appointed an attorney under the LPA, they have authority to make decisions in those areas granted by the court order or by the LPA. This means that if a person has made an LPA or has a deputy, and professionals doubt that the person has the mental capacity to make decisions in relation to a particular matter, than it is the attorney or deputy – not the professionals – who are responsible for making decisions in the person’s best interests. However, care must be taken that they have the requisite authority for that type of decision – for example an LPA for health and welfare will not confer authority to make financial decisions, and deputies have certain restrictions on their authority which LPAs do not.

Deputies are almost only ever appointed for property and affairs matters. Only a very small number of deputies are appointed to make health and welfare decisions. This is because the court prefers not to empower a single individual to make health and welfare decisions above others, and prefers that families and professionals work together towards a consensus. When they do so, they will be relying upon the ‘general defence’, described below.

The ‘general defence’

The vast majority of health and welfare decisions taken everyday by the families, carers and health and social care practitioners of people who lack mental capacity will be taken under the ‘general defence’ (s5 MCA). Ordinarily when people provide care or treatment, they do so on the basis of the person consenting to this; without consent, these acts could potentially be unlawful. The general defence provides those performing acts of care and treatment with the same defence against liability they would get if the person had consented to it, provided they have taken reasonable steps to establish whether or not the person had capacity, they reasonably believe that the person lacks mental capacity and that the proposed acts are in the person’s best interests. If the care or treatment involves the use of restraint or restrictions on the person’s freedom of movement, then they must also be necessary and proportionate to the likelihood and severity of the harm that would befall the person otherwise (s6 MCA).

The general defence is quite a peculiar legal mechanism, as it does not clearly appoint a single decision maker. Unless a person has a deputy or an attorney with specific authority to make health and welfare decisions, the general defence will apply to whoever is performing the act of care or treatment. Sometimes this will be family members providing care to a person on an informal basis. But it will also apply to health and social care practitioners proposing particular acts of care or treatment. This can lead to a lack of clarity about who ‘the’ decision maker is. Provided everybody is in agreement about what should be done, then this is not a problem. But where disputes break out about serious health and welfare matters, which cannot be resolved by discussion, then increasingly these matters must be decided by the Court of Protection.

The Mental Capacity Act, children and families

In general, the MCA only applies to people over the age of 16, however the Court of Protection can make financial decisions on behalf of children of any age. The advance planning provisions and the DoLS do not apply to under 18’s.

When children are under the age of 16, their ‘competence’ to give or refuse consent to medical treatments is assessed by the Gillick standard (see this NHS guidance). The mental capacity of 16 and 17-year-olds to give or refuse consent to treatment will be assessed by the MCA test of mental capacity outlined above.

The ‘general defence’ for acts of care or treatment described above will applies to young people aged 16 and above, and the Court of Protection can make declarations an orders about the health and welfare of this age group. This potentially creates some overlap with the family courts, and it may not always be obvious which court should deal with disputes about the health and welfare of children whose mental capacity is in question. The Court of Protection and the Family Court can transfer proceedings between the courts, depending upon which is more appropriate.

Families often report feeling ‘shut out’ of decision making when a son or daughter with a capacity impairing developmental disability reaches 18. Many families presume that as they are the person’s ‘next of kin’ they will continue to have formal legal authority to make decisions on behalf of their relative, but this is not the case. Unless families have some specific legal authority conferred under an LPA or by being appointed a deputy by the Court of Protection, many medical and care decisions they may have been making for their sons or daughters will fall to be made by professionals under the general defence. This can feel very unsettling for families. They do have rights to be consulted under the best interests procedure outlined above – Mencap has developed a toolkit to help families to assert this right. Should serious disputes break out between families and professionals, that cannot be resolved by other means, they should be referred to the Court of Protection as soon as possible.

You can read more about how the MCA affects parent carers at the Encyclopedia of Family Law.

Parents and the mental capacity to consent to care arrangements and adoption

Section 27(1)(f) of the MCA states that a person cannot make a decision on behalf of a parent to consent to adoption. Under section 52(1)(a) of the Adoption and Children Act 2002 the court may dispense with the parent’s consent if the parent lacks capacity under the MCA.

The Family Justice Council guidance (see below) suggested that it is unlikely that a parent who lacks capacity can agree to their child being looked after by the local authority. In the case of Re CA [2012] the judge stated that a section 20 agreement made by a mother who lacked capacity was invalid and that even if she had capacity, it was also the social worker’s duty to ensure that consent to section 20 was fairly obtained with the mother being fully informed about the consequences and all her options.

Parents who lack the capacity to litigate in family proceedings

Many parents are involved in care proceedings about their children have mental disabilities (either because of learning disabilities or mental health problems) that affect their ability to participate in the proceedings. This is called ‘litigation capacity’. When a person lacks litigation capacity, a ‘litigation friend’ must be appointed to instruct their lawyer on their behalf in their best interests. In care proceedings, this will usually be the Official Solicitor.

Because the Official Solicitor acts in the best interests of the person, and not on the basis of what the person wants, he may not always oppose the making of a care order if he feels it is not in the best interests of the parents to do so, even if they would like him to. In the case RP v UK the European Court of Human Rights confirmed that this approach was compatible with the European Convention on Human Rights, but has led to some controversy.

In May 2010 the Family Justice Council (FJC) published guidance in relation to the issues that arise in public law cases where a parent lacks capacity to conduct the proceedings. This had been referred to the FJC for consideration following the emphasis on pre-proceedings work with parents in the Public Law Outline (PLO). The specific references to court rules and practice directions are out of date in this guidance but in principle it is still recognised by the courts as good practice.

Parents may also be considered ‘vulnerable witnesses’ and require special measures to be taken to help them attend hearings. The Family Court recently set up a special working group to review these procedures, and the Advocates Gateway has produced a toolkit to help support vulnerable witnesses in family proceedings.

Further information

There are a number of helpful sources of information on the MCA:

The case law of the Court of Protection can be found on the BAILII website and Mental Health Law Online. 39 Essex St Chambers produce an excellent newsletter on the case law of the MCA. There are also several blogs on the MCA and related issues, including Alex Ruck Keene’s Mental Capacity Law and Policy blog and Lucy Series’ blog The Small Places.