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This chapter is by Maggie Bloom, barrister, Hardwicke Chambers, and is based on a chapter on Psychiatric Negligence which we wrote for Clinical Negligence, 4th edition, ed. Powers, Harris and Barton, London: Tottel 2008.

The Mental Capacity Act 2005

The Law Commission published a report into reform of the law relating to mental capacity in 1995 and after government consultation in 1997 the first draft of the Bill was published in 2003. The Mental Capacity Act 2005 finally came into force on 1 October 2007 after protracted debate, delays in drafting and amendments. It only applies to England and Wales, similar legislation having been enacted in Scotland, as the Adults with Incapacity (Scotland) Act 2000.

It is important to remember that the Act does not deal with the capacity to litigate; this remains the provenance of the common law and is set out in Masterman-Lister v Brutton & Co (No 1).¹ This was confirmed in a recent case in 2007, Local Authority X v (1) MB (by her Litigation Friend the Official Solicitor) (2) KM² in which it was held that in the case of a vulnerable adult, the test as to whether a person has capacity to consent to medical treatment as set out in Re MB (Caesarean Section)³, also applied to the question of whether a vulnerable adult had capacity to decide where she should reside and with whom she had contact. There was no relevant distinction between the test as formulated in Re MB and the test set out in the Mental Capacity Act 2005, s 3(1). However, it was confirmed that Masterman-Lister set out the test which applied to the capacity to litigate. Nevertheless, the principles enshrined in both are almost identical. In Masterman-Lister, Kennedy LJ said:

‘the mental abilities required include the ability to recognise a problem, obtain and receive, understand and retain relevant information, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision, and the ability to communicate that decision.’

1        [2002] EWCA Civ 1889.

2        [2007] EWHC 2003 (Fam).

3        [1997] 2 FLR 426.

The intention of the Act is to provide clear guidance to the estimated two million people who are unable to make decisions for themselves and the estimated six million people who are involved in caring for them.

The Act is wide-ranging, covering decisions regarding personal welfare and financial matters and provides for substitute decision-making by court-appointed deputies. It also includes new rules to govern research involving those who lack capacity and provides for the appointment of independent mental capacity advocates to represent and provide support in relation to some decisions. Further, the Act replaces Part 7 of the Mental Health Act 1983 and the Enduring Powers of Attorney Act 1985 in its entirety. Part 2 of the Act provides a new Court of Protection with far more wide-ranging powers than the old Court of Protection. It is an office of the Supreme Court and creates the post of a statutory official, the Public Guardian to support the work of the court.

The Act is designed to be compatible with the European Convention of Human Rights and a declaration of compatibility has been given. The Act meets the state’s positive obligation under Article 8 to ensure respect for private life.

A clear definition of what constitutes incapacity is set in the Act, as are duties of those acting on behalf of those who lack capacity. A fundamental tenet is a presumption of capacity until it is proved otherwise. Further, the Act requires every effort to be made to assist a person to take a decision for himself.

In s1 (2) it is stated that

‘A person must be assumed to have capacity unless it is established that he lacks capacity’ and s. 1 (3) of the Act states, ‘A person is not to be treated as unable to make a decision until all practicable steps to help him to do so have been taken without success’.

It is expressly provided that a person is not to be treated as lacking capacity simply because he makes an unwise, irrational or eccentric decision, that others judge not to be in his best interests.

The Act further requires that if the court does intervene in a person’s life, the intervention should be as limited in scope and duration as the circumstances reasonably allow. Not only must every decision made under the Act be in that person’s ‘best interests’ but the ‘least restrictive option’ must always be considered. Thus a person making a decision on behalf of a person lacking capacity must always consider whether it is possible to decide or act in a way which would interfere less with the rights and freedoms of that person.

Section 2 (1) of the Act refers to a person lacking capacity ‘in relation to a matter’ and the Explanatory Notes state that ‘a person may lack capacity in relation to one matter but not in relation to another matter.’ This is in contrast to the present state of the common law with regard to capacity to litigate. In Bailey v Warren¹ the Court of Appeal held that if a litigant has the ability to understand what was meant by a 50/50 split of liability, but lacks the capacity to understand the concept of damages that result from that division of liability, then he lacks the true capacity to conduct those proceedings. This dictum on the indivisibility of litigation decisions was made by a two to one majority. It is however possible that a person could have capacity to understand simple litigation but not more complex litigation.

1        [2006] EWCA Civ 51.

Section 3 sets out the test for assessing whether a person lacks capacity in relation to a matter. It is a ‘functional test’ and in order to make a decision a person must have the following abilities:

(1)        Be able to comprehend the information relevant to the decision. Further, the information must be placed before the person in a way that is appropriate to his circumstances.

(2)        Be able to retain the information long enough to made the decision.

(3)        Be able to use and weigh the information in order to make the decision.

(4)        Be able to communicate the decision.

The final category is designed to include persons with locked-in syndrome, who may be able to understand but have no power to communicate. The explanatory notes make it clear that if a person can communicate ‘yes’ or ‘no’ by blinking an eye for example, they should not be included in this category.

Section 4 sets out the requirements necessary to act in ‘the best interests’ of the person lacking capacity. These include considering whether or not the person is likely to regain capacity at a time in the future and whether the decision can be put off until he has regained capacity. Even where a person has been deemed to have lost capacity, there is a duty to involve the person as far as possible in the decision-making process. The decision maker must also take into account the ‘past and present wishes and feelings’ of the person, which includes consideration of known values, religious views and lifestyle choices of the person, as well as any relevant written statement. The Act emphasises the requirement to consider all the circumstances and the opinions of relevant others, such as carers and family where it is ‘practicable and appropriate’. The Explanatory Notes state that the circumstances which must be taken into account are those of which the decision maker is aware and which it would be reasonable to regard as relevant. This provision is intended to acknowledge that the decision maker cannot be aware of everything, while requiring him to take into account all matters which it is reasonable to regard as relevant.

Section 5 provides statutory protection against liability for certain acts done in connection with the care or medical treatment of a person lacking capacity. Providing the act qualifies as a ‘Section 5 act’ the carer will not face civil liability or criminal prosecution.

Sections 9-14 create the new statutory ‘lasting power of attorney’ (LPA) which replaces the enduring power of attorney. This power, given by a person (the donor) to another person (the donee), includes the power to take decisions not only about property and affairs but decisions about the donor’s welfare. One or more people can be appointed as donees and can be appointed to act either jointly or severally. Further, the donees can be appointed to act jointly in respect or some matters and severally in respect of others. The donor can provide for the replacement of a donee in certain specified circumstances, or the donee can be given the power to provide for his own replacement.

Section 15 gives the Court of Protection power to make declarations as to whether a person has capacity in respect of matter within the declaration. The Court is restrained by the principles which apply to anyone making a decision, set out in s 1. However the Court is required to consider two further principles. The first is that, although the court has the power to appoint a deputy, a decision of the court is preferable. The second is that if a deputy is appointed, the appointment should be limited in scope and duration as is reasonably practicable. Deputies are not to be involved in decisions regarding welfare but are concerned with questions arising over the management of property and affairs. The court has the power to vary or discharge its orders and dismiss a deputy if he is overstepping his powers or failing to apply the ‘best interests’ tests. The recently revised CPR 21.4(2) provides that a deputy appointed by the Court of Protection under the 2005 Act is entitled to be the litigation friend of the protected party in any proceedings to which his power extends.

Sections 24-26 make provision for advance decisions to refuse treatment. Essentially these sections codify and clarify the current common law. In HE v NHS Trust A and AE¹ it was held that a competent adult’s anticipatory refusal of consent (in that case blood transfusion) remained binding after he became incompetent. Advance statements and living wills will be as relevant as past wishes when considering the requirements in s 4. An ‘advance decision’ must satisfy the criteria set out in the Act and will not apply to life sustaining treatment, unless it is specifically verified in the statement that it is intended to apply even if life is at risk. The reference to life includes the life of an unborn child. If valid and applicable, an advance decision has the same legal force as the decision of a person with capacity. If the advance decision is ignored, the treatment provider is liable in tort for battery, or could face criminal prosecution for assault. If there is any doubt about the provision of treatment in respect of the terms of an advance decision, the Court of Protection has the power to determine the issue. If necessary, while the dispute is being resolved, treatment may be given to prevent death or serious deterioration in a condition. It is hoped that advance decisions will reduce the stress of decision-making for relatives at difficult times and doctors will have the certainty of knowing that they are obliged to respect properly executed advance decisions, or risk prosecution.

1          [2003] EWHC 1017 (Fam).

Sections 35-41 create a new function, the independent mental capacity advocate (IMCA). They are intended to be appointed and to act in cases of particularly vulnerable people who lack capacity. Some groups who are likely to benefit from the appointment of an IMCA are older people with dementia who have lost contact with friends and family, or those with severe learning disability or long-term mental health problems, who have been in residential accommodation for long periods and have lost outside contacts. It is anticipated that the IMCA will provide representation and support for the person when decisions are to be made about matters such as serious medical treatment, or a change of residence provided by a public body.

Sections 42 and 43 of the Act provide for a Code of Practice to be issued by the Lord Chancellor. This was formally issued on 23 April 2007 and provides guidance and information on how the Act will work on a day-to-day basis for anyone involved as family or carers for a person who lacks capacity. Those who have a duty to have regard to the code when acting on behalf of a person who lacks capacity are donees of a lasting power of attorney, a deputy appointed by the court, a person carrying out research in reliance on ss 30-34 of the Act, IMCAs and persons acting in a professional capacity or acting for remuneration.

Part 2 of the Act establishes the Court of Protection, which will be a superior court of record and will be able to sit anywhere in England or Wales. It is anticipated that the court will deal with welfare matters previously referred to the High Court. The Court of Protection is to have both a regional presence (in High Court district registries, or county courts) and a central office and registry. The new Court of Protection will have the same powers as the High Court with regard to witnesses, contempt and enforcement and the Lord Chancellor, or an appropriate person acting on his behalf, will nominate judges to exercise its jurisdiction. Technically there will be a right of appeal from the Court of Protection to the Court of Appeal, however as the Court of Protection will comprise judges at different levels, it is intended to make provision by rules of the court, to allow decisions made at a lower level to be appealed to a higher judge, within the rules, not necessarily the Court of Appeal. The former Court of Protection will cease to exist.

Section 57 provides for the appointment of a Public Guardian by the Lord Chancellor. The Public Guardian will have a staff and officers to assist in carrying out his functions. These include establishing and maintaining registers of LPA and orders appointing and supervising deputies. He will also have the power to appoint and direct Court of Protection Visitors, whose function it will be to visit donors or donees of LPAs, deputies or those appointing them and prepare reports for the court. The Public Guardian will also deal with complaints about how an attorney or deputy is exercising his powers. It is intended that the Public Guardian will work closely with local authorities and NHS bodies. He will have power to examine and take copies of relevant health, social service or care records and interview any persons concerned. There are to be further regulations, which will deal with how the Public Guardian will exercise his administrative duties, details of fees and the sources from which they may be met.

The Mental Capacity Act is wide-ranging. It codifies and clarifies some areas of law and introduces new statutory provisions intended to protect the vulnerable in society and assist them, where possible, to remain involved in decision-making processes being made on their behalf. It is not yet entirely clear how the Court of Protection and the Public Guardian will fulfil their duties in practice, however, as drafted, the Act appears to provide a framework for a more cohesive system of protection for those who lack capacity and monitoring of the process by which decisions are made and the decisions themselves. Hopefully it will also prove to be of assistance to the many carers and families of people who lack capacity, who are an ever-increasing number in our society of greater longevity.