The Law in Action;

The Court of Protection

Janice WhiteSenior Solicitor18th April 2013

Overview

A reminder of the basic principles of the MCA

Some particular areas of interest

An overview of the procedure for making an application to the COP

Preparing for your application

Basic principles of the

Mental Capacity Act 2005

1. Assumed to have capacity unless it is established that do not.

2. Not to be treated as unable to make a decision unless all practicable steps to help have been taken without success.

3. Not to be treated as unable to make a decision merely because make an unwise decision.

4. An act done or decision made under this Act for / on behalf of an incapacitated person must be done / made in his best interests.

5. The least restrictive option

The 5 Statutory Principles

s2 Mental Capacity Act

'a person lacks capacity in relation to a matter if at the material time he 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.‘

- the 2 stage test -

An impairment of,

or a disturbance in the functioning of,

the mind or brain

a person is unable to make a decision for himself if he is unable –

◦to understand the relevant information, ◦to retain that information,◦to use or weigh that information as part of the

process of making the decision, or◦to communicate his decision

Remember

"in principle, legal capacity depends on

understanding rather than wisdom; the quality of

the decision is irrelevant as long as the person

understands what he is deciding"

The person making the decision needs to be identified and recorded

There is no such thing as a ‘team decision’

‘Expert input’ may be sought to assist with gathering relevant information to assist the decision maker

Requires the decision maker to consider all relevant circumstances and

- Consider if, and if so when, the person may regain capacity- Encourage the person to participate as much as possible

in the decision making - Consider the person’s wishes and feelings, beliefs and

values and other factors that the person may consider were he able to do so

- Consult anyone specified by the person, engaged in caring for, or interested in the person, any Attorney under an LPA or Deputy

Some particular

areas

of interest

The Code makes it clear that before any application is made, other means of resolving disputes should be tried

However, this needs to be balanced against the need to ensure that if an application is made, the Court has adequate time to hear it!

In a DoLs case, applications must always be made in advance

"the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution … and the mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family".

"the … authorities do their very best to nurture and facilitate any skills which the incapacitated adult may have to help them in moving, where possible, towards a greater degree of independence in the way they live their lives. Thus, whilst in many cases the family may be the providers of care and nurture for such adults, there seems to be to be a philosophical and practical shift towards ensuring as great a degree of independence in living arrangements as is possible".

The least restrictive principle

"Before making an application under the MHA, decision-makers should consider whether they could achieve their aims safely and effectively by using the MCA instead".

DoH – there is no general rule that the MHA takes precedence, save in DoLs cases

BUT, the court’s view is that

"there are good reasons why the provisions of the MHA should prevail where they apply. It is a self-contained system with inbuilt checks and balances and it is well understood by professionals working in the field. It is cheaper than the Court of Protection"

The essential thrust, however, is whether looking at the individual needs of the specific young person, it can be said that their welfare will be better safeguarded within the Court of Protection than it would be under the Children Act.

The Court can choose to appoint a Deputy to manage an individual’s finances or make decisions regarding his health and welfare.

Alternatively, the Court can make a specific decision in respect of the issue before it.

Which will it choose?

Re E, G v E, 2010

The court considered the relative merits of the appointment of a Deputy over the use of specific decision making.

"where there is a disagreement over an aspect of care or treatment or the matter is of particular gravity or difficulty, the issue should usually be determined by the Court rather than entrusted to a deputy"

The powers of the Court are to;

Make declarations about a person's capacity Make decisions regarding the personal welfare or finances of an

incapacitated person Make decisions regarding serious medical treatment relating to

providing, withdrawing or withholding treatment to an incapacitated person

Appoint a Deputy to manage welfare and / or financial matters on behalf of an incapacitated person

Make decisions about an EPA or LPA, such as considering its validity or scope

Know what you want to achieve

Remember you have multiple roles in the Court arena

Ensure that your file recording is up to scrutiny! You need to be able to demonstrate the decision making process

Know your file! And take it to court with you

Remember you are an expert in your own right

Do not lose your cool and be tempted to answer back regardless of how annoyed you may become by a line of questioning

Any Questions?