Legal Aspects of Mental Capacity

A Practical Guide for Health and Social Care Professionals

Bridgit C. Dimond

• Publisher: Wiley-Blackwell
• Year: 2016
• ISBN:
  9781119045366
• Edition: 2
• Topic: Law
• Subtopic: Medical Law
• Index: Law

LEGAL ASPECTS OF MENTAL CAPACITY

A Practical Guide for Health and Social Care Professionals

SECOND EDITION

Praise for the first edition:

"Invaluable in negotiating the legal minefield that surrounds the complicated issue of mental capacity."
Mental Health Practice

"In Dimond's Legal Aspects of Mental Capacity, we find a well-crafted reference book that goes beyond mere presentation of the law and relevant regulations."
Metapsychology

The Mental Capacity Act (2005) regulates decision-making processes on behalf of adults who are unable to give informed consent due to a loss in mental capacity (be that from birth or due to an illness or injury at some point in their lives). Since the act's implementation, the new Court of Protection has been firmly established, and there have been significant Supreme Court cases, as well as further guidance on the 2005 Act and major developments in the use and assessment for Deprivation of Liberty Safeguards.

Thoroughly updated to take into account the many updates, developments, and changes in legislation and guidance, the new edition of Dimond's authoritative guide will be warmly welcome by practitioners and students who need to understand and work within the Mental Capacity Act and how it applies to their professional responsibilities.

• A highly practical guide to the Mental Capacity Act and its provisions since its conception in 2005
• Relevant for a wide range of practitioners and students within health and social care
• Highly readable and easily accessible, even for those with no legal background
• Includes a range of learning features, including scenarios, questions and answers, key summary points, and applications for practice.

Legal Aspects of Mental Capacity is an essential resource for all healthcare and social services professionals, students, patient services managers, and carers working with those who lack the capacity to make their own decisions.

CHAPTER 1
Introduction: Anatomy of the Mental Capacity Act and its terms

This introductory chapter provides a simple guide to the legislation, the sources of further help, the terms used, the organizations involved, and the structure of this book.

The Mental Capacity Act 2005 had been awaited for over 15 years and fills a huge gap in the statutory (i.e., by Act of Parliament) provisions for decision making on behalf of mentally incapacitated adults. This introduction sets out the main provisions of the Act in a nutshell and explains some of the terms used, the links with later chapters, and the scenarios where these topics are considered in full.

Two basic concepts underpin the Act—the concept of capacity and the concept of best interests:

Mental capacity: only if an adult (i.e., a person over 16 years) (referred to in this book as P) lacks mental capacity can actions be taken or decisions made on his or her behalf. Capacity is defined in Sections 2 and 3 (see Chapter 4). It is important to stress that the term “mental capacity” is used in a specific functional way. A person may have the capacity to make one type of decision but not another. For this reason, the term “requisite” mental capacity is used frequently throughout this book to remind readers that it is the capacity in relation to a specific decision which is in question.

Best interests: if decisions are to be made or action taken on behalf of a mentally incapacitated person, then they must be made or taken in the best interests of that person. The steps to be taken to determine “best interests” are set out in Section 4. There is no statutory definition of “best interests” (see Chapter 5). Where a person has appointed an attorney for property and affairs or personal welfare or set up an advance decision, the provisions within the instruments apply, and these may differ from the best interests of the person lacking mental capacity.

Principles: Section 1 sets out five basic principles which apply to the determination of capacity and to acting in the best interests of a mentally incapacitated adult. These five principles are as follows:

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 or her 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 or she makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his or her 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.

These principles are considered in Chapter 3.

Human rights: the United Kingdom was a signatory to the European Convention on Human Rights in 1950, and those wishing to bring an action under its provisions went to Strasbourg where the ECHR was based. However as a consequence of the Human Rights Act 1998, most of the articles of the Convention were incorporated into the laws of England, Wales Northern Ireland, and Scotland. This enabled any persons who claim that their human rights as set out in Schedule 1 to the Human Rights Act 1998 have been violated by a public authority to bring an action in the courts of the United Kingdom (UK) (Schedule 1 is discussed in Chapter 3). The definition of exercising functions of a public nature has been extended and is considered in Chapter 3.

The Convention on the International Protection of Adults is given statutory force by the Mental Capacity Act (MCA) and is set out in Schedule 3 to the MCA. Its provisions are considered in Chapter 3.

P is the person who lacks (or who is alleged to lack) capacity to make a decision(s) in relation to any matter.

Lasting power of attorney (LPA): the Act enables a person, known as P, when mentally capacitated to appoint a person known as the donee to make decisions about P’s personal welfare at a later time when P lacks mental capacity. The LPA can also cover financial and property matters, and these powers can be exercised even when the donor has the requisite mental capacity. The LPA may be general and not identify particular areas of decision making, or it may specify the areas in which the donee can make decisions. It replaces the enduring power of attorney (EPA) which only covered decisions on property and finance. There are transitional provisions to cover the situation where a person has drawn up an EPA, and these are set out in Schedule 4 and discussed in Chapter 17. LPAs are considered in Chapter 6.

Court of Protection: a new Court of Protection replaced the previous Court of Protection and has powers to make decisions on personal welfare in addition to property and affairs. (The previous Court could only consider matters relating to property and affairs.) Its powers, functions, constitution, and appointment of the Court of Protection visitors and deputies are discussed in Chapter 7.

Deputies: the Court of Protection has the power to appoint deputies to make decisions on the personal welfare, property, and affairs of the mentally incapacitated adult. These powers and the restrictions upon them are considered in Chapter 7.

The Office of the Public Guardian is appointed by the Lord Chancellor to set up and maintain registers of LPAs, EPAs, and deputies. It supervises deputies and provides information to the Court of Protection. It also arranges for visits by the Court of Protection visitors. A Public Guardian Board scrutinizes and reviews the way in which the Public Guardian discharges its functions. These offices are discussed in Chapter 7.

Independent mental capacity advocates (IMCAs): the Act makes provision for such persons to be appointed to represent and support mentally incapacitated adults in decisions about accommodation, serious medical treatment, and adult protection situations. These advocates are appointed under independent mental capacity advocate services which are established to provide independent advocates for mentally incapacitated adults in specified circumstances. They represent and support mentally incapacitated adults in decisions by NHS organizations on serious medical treatment and in decisions by NHS organizations and local authorities on accommodation. The original remit of the IMCAs has been extended to cover care reviews and situations ...