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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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The Mental Capacity Act 2005: A Legal Update

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ISBN13: 9781906355869
Published: March 2010
Publisher: Ark Group
Country of Publication: UK
Format: Paperback
Price: Out of print

At the time of the coming into force of the Mental Capacity Act 2005 (the Act), the Department for Constitutional Affairs estimated that some two million people were affected by a lack of capacity to make certain important decisions for themselves, while some six million carers were also likely to be affected. The Act, therefore, has a major impact on the lives of a significant proportion of the population. Not only does it codify what has gone before, it makes far-reaching amendments to the old law. Before its coming into force on 1 October 2007, the law on mental capacity and the procedures to deal with its absence were to be found in a number of places, both common law and statute. The Act produces a codified system where most of the issues concerning mental capacity can be dealt with in a structured way, to the benefit both of those who lack full capacity and their carers, as well as those who advise them. Inevitably, a brand new scheme brings with it teething problems; but already two major changes have taken place: * The prescribed forms for the new Lasting Powers of Attorney (LPA) have been replaced by shorter and simpler forms; and * The Deprivation of Liberty Safeguards (DOLS) have been introduced. It is this continuing change and development in the practice affecting mental incapacity which is the focus of this report. A practitioner who relies on material from 2005 will swiftly be led into error. How far has the tick-box approach to the new powers of attorney caused problems for those drafting them and how can those problems be avoided? How can it be determined whether a person who lacks capacity should be detained under the DOLS or under the Mental Health Act? This report aims to answer some of these pertinent questions facing anyone working with the Act. The Act does two things: * It sets out a code for assisting decision making by those who lack capacity; and * It sets up a structure to administer the Act's provisions and for judicial decision making. Chapter 1 is an introduction which briefly sets out the background to the Act and explains something of the law and procedures which are replaced. Chapter 2 examines the legal decision-making processes involved in administering and supervising decision making under the Act. The Court of Protection has changed from being merely an office of the Supreme Court to a superior Court of Record. This has led not only to a rapid development of its own procedures, but also to rapid development of the law itself. The Office of the Public Guardian, charged with the duty to register powers of attorney and to supervise deputies and attorneys, has attracted considerable criticism, which it has sought to meet by developing and amending its practices. Furthermore, it should not be forgotten that most day-to-day decisions on behalf of those who lack capacity are made by deputies, attorneys and health and local authorities, all of whom require supervision and assistance to deal with the complexities and unclear areas within the Act. Chapter 3 is concerned with the law and practice on powers of attorney. As noted previously, the introduction of the LPA was one of the most significant changes for practitioners. This change was followed by the wholesale redesign of the forms, as well as the developing case law as to how they should be completed. In addition, Enduring Powers of Attorney (EPAs) have not gone away and the law continues to develop in this area at the same time, and is likely to continue to do so as EPAs are presented for registration. This chapter explains recent case law and significant developments in the appropriate drafting and registration of the powers. The CD-ROM attached to this report includes the new LPA forms and guidance, and should be referred to when reading this chapter. The DOLS came into effect on 1 April 2009 and are an attempt to fill the 'Bournewood Gap' - the question of how far someone lacking mental capacity, can be detained without reference to the Mental Health Act 1983. The safeguards provide a comprehensive, but arguably over complex, system for approving detention in such circumstances and also for providing recourse to a court where necessary. Quite apart from the complexities of the scheme, it inevitably provides a complex interface with the Mental Health Act, already the subject of two reported cases. Chapter 4 considers some of these complexities and the question of what constitutes a deprivation of liberty and at what point does restraint become a deprivation, requiring a consideration of the case law of the European Court of Human Rights. The CD-ROM attached to this report should be referred to when reading this chapter. Chapter 5 covers wills and statutory wills. Mental capacity is a matter which is often raised by those who would challenge a will and the new Act provides a different and updated formula for determining capacity. Although the case law is still at an early stage of development, the practitioner needs to know the nature of the test to be applied and the way it is likely to be interpreted. The statutory will - applying to the court for approval of a will made by a person who lacks capacity - is another fast-developing area. With the development of the new test of requiring the best interests of the testator to be considered in drafting a will, how far is it important to take into account the way in which the testator will be remembered? This chapter also analyses some of the key questions in determining best interests. Chapter 6 considers other matters which are not covered elsewhere - the status of advanced directives as to medical treatment now given legal force by the Act and the role of the Independent Mental Capacity Advocate, together with a brief review of the relevant case law. Finally, Chapter 7 sets out those future plans and proposals affecting the matters covered in this report. This report aims to shed light on some of the complexities and grey areas within the Act and uses real-life scenarios to illustrate how some of the key questions can be tackled. It is targeted at private practice practitioners dealing with mental capacity matters, mental health professionals and carers, public bodies such as local authorities and hospitals, and anyone else working with the Act, such as the Independent Mental Capacity Advocate.