Rebecca Brown, senior associate solicitor and mental capacity specialist at Hugh Jones Solicitors

11 February 2020

The role of a Court of Protection firm such as ours is to support vulnerable people; particularly those with a mental incapacity, their families and their advisers.

Working within the framework of the Mental Capacity Act, lawyers in this field work hard to ensure that clients who lack capacity are empowered to make as many decisions for themselves as possible and that any decision made on their behalf is in their best interests. 

What is mental capacity? 

Mental capacity is defined as having the ability to make your own decisions. This includes everyday matters, like what to wear, or more significant decisions that would have a major impact on life, such as where to live or medical treatment options.

Common reasons for lacking mental capacity include dementia, mental health problems, learning disabilities, brain injuries, substance misuse, illness or treatment of illness. It is estimated that around two million people in England and Wales lack capacity and the severity can vary. For example, an individual can lack capacity to make complex financial decisions but still be able to make less complex day-to-day financial decisions.

What are the legalities surrounding mental capacity?

Legislation provides support for determining whether someone has capacity, which is backed up by a legal framework for making decisions on their behalf if they don’t. In England and Wales, the legislation is the Mental Capacity Act 2005 (MCA).

The creation of the MCA marked a turning point in the protection of the statutory rights of those who lack capacity. It laid down the following five principles:

• Every adult has the right to make decisions, and must be assumed to have capacity unless it is proven otherwise
• People must be given all appropriate help before they can be considered unable to make their own decisions
• Individuals have the right to make unwise decisions, this doesn’t necessarily prove incapacity
• Anything done for or on behalf of a person who lacks capacity must be in their 'best interests'
• Anything done for them or on their behalf should be the least restrictive of their basic rights and freedoms. 

How is mental capacity assessed?

There is a two-stage test of capacity under the MCA:

Stage One: The diagnostic test of mental capacity

This questions whether the person has permanent or temporary impairment of, or disturbance in, the functioning of the mind or brain.

Stage Two: The functional test of mental capacity

If the answer to stage one is yes, this explores whether the impairment makes the person unable to make a specific decision. This can be determined when, after all appropriate help and support to make the decision has been given to them, they cannot:

• understand the information relevant to that decision
• retain the information
• use or weigh up that information
• communicate their decision.

If any of these apply, the person officially lacks the mental capacity to make the decision in question.

Common-law tests for establishing capacity, or a lack thereof, have been developed by the courts over the years, in relation to a number of specific decisions that a person may make. For example, capacity to put in place a Will or litigate. The MCA’s statutory test doesn’t replace these tests, but sits alongside them to ensure that the individual in question is protected as much as possible.

Is the decision in the person’s best interests?

When it comes to deciding what’s in a person’s best interests, the MCA has a checklist to follow. This includes:

• encourage participation – do whatever is possible to permit or encourage the person to take part
• identify all relevant circumstances – try to identify the things the individual would take into account if they were making the decision themselves
• find out their personal views – including their past and present wishes and feelings, and any beliefs or values
• avoid discrimination – don't make assumptions on the basis of age, appearance, condition or behaviour
• assess whether the person might regain capacity – if they might, could the decision be postponed?

Protecting vulnerable clients under The Court of Protection

The Court of Protection is a specialist court for all issues relating to those who lack capacity. It appoints Deputies to make decisions in the best interests of those individuals in areas such as property and financial affairs or their health and personal welfare. Cases can be brought to the Court by family members, as well as advocates and professionals. 

When working with vulnerable people and their families, it is vital to operate with a focus on dignity and respect. Our team is hand-picked for their caring and expert understanding of the needs of clients and their families. We keep in regular contact with the client, families, carers and care professionals including home visits. 

For more information, give us a call and speak to one of our experts.