An overview: Court of Protection and Mental Capacity Act 2005

16 December 2010

Brian Bacon, Senior Associate, Thomson Snell & Passmore

Background

It has been just over 3 years since the Mental Capacity Act 2005 came in to force in October 2007. This is a hugely significant piece of legislation for lawyers, medical practitioners, social workers, carers, family members and anyone else dealing with the vulnerable and those that lack capacity.

There were various gaps in the previous law. For example, there was no proper procedure for dispute resolution and an apparent lack of regulation of substituted decision making undertaken by Receivers and Attorneys under the old Mental Health Act 1983 regime.

The objectives of the act are primarily to empower and protect those persons who have lost capacity to make decisions for themselves, and to enable people who do have capacity to make arrangements and provision for a time in the future when they do not.

The Act: Core Principles

The first core principle under the Act is the presumption that every person has capacity to make his or her own decision (s. 1(2)). Section 2 sets out the definition of incapacity which is met: “..if at the material time P is unable to make a decision..[due to]..an impairment of, or a disturbance in, the mind or brain.” This is the diagnostic test.

If this test is satisfied the person concerned (referred to as "P") will still only be said to lack capacity if at the material time he is unable to make that decision. This is the functional test; section 3 sets out the factors P must meet to make the decision.

The Act therefore reinforces the common law principle that capacity is decision specific. Different levels of capacity are required for different decisions. Decisions such as making a will, agreeing to medical treatment, and managing financial affairs are all standalone issues where capacity needs to be assessed.

Someone may, for example, suffer from a brain injury and can make some decisions
but not others. Should I pay to go and see Chelsea play this Saturday? Do I want to,
and can I, invest £100,000 from my damages award in a blue chip company? What should I wear? Where should I live?

This means that professionals who are involved must constantly assess and review whether they have authority to act. This can present practical problems and difficulties..

The second core principle of the Act is that of best interests. This underpins the whole regime. Once an assessment has been made that P does not have the capacity to make the relevant decision, the person making the decision on his behalf (whether under the authority of the Act, an order of the Court, or power of attorney) must take an objective view and determine what is in P’s best interests. Section 4 of the Act sets out the factors that the decision maker must consider when deciding what is in P’s best interests.

The Act is supplemented by the Code of Practice, which provides guidance (rather than instruction) to anyone working with or on behalf of someone who lacks capacity, on how to make decisions, and describes their responsibilities (please see Senior Judge Lush's helpful article on the Code here)

The Court of Protection and Office of the Public Guardian

The Court of Protection is at the centre of the new jurisdiction. The old Court of Protection having been abolished, the new Court is a superior court of record, with the same authority as the High Court. It is part of the HMCS Royal Courts of Justice Group, which provides its administrative support. Any decision made on behalf of someone who lacks capacity must be made by a judge. The role of the Court combines both financial decision making (previously undertaken by the old Court of Protection) and health and welfare decisions (previously only made by the High Court).

Concurrently, the non-judicial aspects of the Act are dealt with by a separate autonomous body, the Public Guardian. The Public Guardian is a statutory office holder, and the Chief Executive of the Office of the Public Guardian (“OPG”), an executive agency of the Ministry of Justice.

The core function of the OPG in practice is limited to registration of powers of Attorney, and supervision of Deputies once they have been appointed. They maintain a register of all Deputies and attorney's. Supervision of Deputies is undertaken by requiring the Deputy to provide annual reports, detailing financial transactions and the decisions made over the previous year. The OPG may also commission home visits to clients by one of the Court of Protection visitors.

The Act therefore provides a separation of powers between judges who decide, and civil servants who ‘supervise'. This has been put in place to ensure that the person who lacks capacity is both empowered and protected.

Deputies, Attorney’s and IMCA’s

One of the key changes made by the Act was to abolish the role of receiver, and replace it with a deputy, avoiding confusion with bankruptcy and reflecting the idea that a deputy has powers “deputed” to him by the Court to carry out his functions. The Act sets out a deputy’s powers in very broad terms. Particularly where a professional is appointed, the Deputy is often provided with a great deal of autonomy to act without need to defer to the Court each time a decision is to be made – as long, of course, as he adheres to the Act and the Code of Practice.

In addition, the Act abolished the old Enduring Power of Attorney (“EPA”). After 1st October 2007, new EPA’s could no longer be created, although valid EPA’s created before that date can still be used. Instead, the Act provided for advanced decision making to be undertaken through the use of Lasting Powers of Attorney ("LPA's"). Significantly, LPA’s enable someone with capacity to delegate their decision-making to an Attorney(ies) for both financial and health & welfare matters. This is a key departure from the old regime, where only financial decision-making could be delegated under an EPA.

The Act also introduced the role of the Independent Mental Capacity Advocate ("IMCA"). IMCA’s provide a new form of statutory advocacy service, and offer a role to safeguard the rights of people lacking capacity, generally - although not exclusively - in matters of welfare decision-making where there is no one else willing or able to represent them.

Is it working?

Since its inception, the Court has come under scrutiny, and received some adverse press; a headline in the Mail on Sunday last October dramatically declared “Secret Court seizes £3.2bn from elderly...and even forces furious families to pay to access own bank account”. This criticised the fact that, as a general rule, hearings are held in private. The Court has also been criticised for being both inefficient and unduly lenient. Everyone will have their view on how the Court and the OPG are faring, and the Act has certainly had its teething problems.

Many complain of the Court’s newfound bureaucracy and that the procedures set out in the Court of Protection Rules 2007 make life unnecessarily complicated. What previously may have been a simple application to a nominated officer at the Public Guardianship Office, can now be an expensive and time consuming formal application to the Court.

In his foreword to the Court of Protection Report 2009, Senior Judge Lush admits it has not been plain sailing, and that the Court has had to endure its fair share of setbacks. This, he explains, was mainly due to the failure to anticipate the volume of work that would inundate the Court, and that there has been a shortage of judges at the Court’s central registry in Archway.

Certainly, it is fair to say that many of the problems encountered in the first 3 years have been due to a lack of resources. The judges and staff at the Court or OPG have all been working hard to provide an acceptable level of service.

The Post-Legislative Assessment of the Act published in October 2010, reported that since 2007, the OPG received 265,000 and registered 210,000 EPA’s and LPA’s. Of these, 38,000 were health and welfare LPA’s. This is an average of around 240 health and welfare LPA’s a week alone, which is not an insignificant number. However, the figures perhaps show that the Act is filling a need by allowing people to plan in advance for others to make these types of decisions on their behalf, which was not available before.

Further, the report shows that there are far fewer disputes in relation to LPA’s then EPA’s – by a ratio of 6:1 - showing that the Act is having a very positive impact in that regard and supporting policy objectives.

Brian Bacon is a Senior Associate at Thomson Snell & Passmore which has one of the largest specialist Court of Protection teams in the country. Brian spoke at the 2010 Law Society Probate Section Conference on unusual Court of Protection applications.

brian.bacon@ts-p.co.uk www.ts-p.co.uk

An overview: Court of Protection and Mental Capacity Act 2005

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