Mental Capacity Act - a brain injured man is supported by his carer as he grinds coffee beans

The Mental Capacity Act 2005 is legislation that was drawn up to empower and protect people who can’t make decisions for themselves.

This legislation usually applies to anyone over the age of 16 who lacks capacity. This means they cannot make a specific decision about their own life and need help to do this. Alternatively, the Mental Capacity Act can be applied if someone just needs support to make a decision.

When the Mental Capacity Act was introduced, it needed a body to make decisions and apply the legislation. As a result, the Court of Protection was set up.

The Court of Protection applies the Mental Capacity Act to property and finances matters or the health and welfare issues of anyone over 16 who can’t make decisions about a specific issue.

If a child under the age of 16 will not have capacity by the time they reach the age of 18, the Court is given the authority to make those decisions even though they are not yet 16 years old.

The fundamental principle underpinning the Mental Capacity Act is that capacity is presumed. This principle is covered in Section 1 of the Act. It’s important to understand that just because a person makes an unwise decision or seems unable to make a decision does not necessarily mean they lack capacity.

Before the Court of Protection decides that someone lacks capacity, you must show that all practicable steps have been taken to allow that person to make the decision themselves, but that these steps have been unsuccessful.

What are Capacity Assessments?

The test for capacity is twofold. The first is diagnostic and the second is the functional aspects.

In the diagnostic test, the Court of Protection will look at whether the person is suffering from an impairment of the brain or mind. This impairment could be temporary or permanent and makes them unable to make the decision in question.

The functional test focuses on the individual’s ability to:

  • understand the decision in question;
  • understand the information needed to make the decision;
  • retain the information needed for as long as it takes to make the decision;
  • weigh up the factors involved in making the decision;
  • communicate their decision.

Any assessor needs to show that on the balance of probabilities, the person lacks capacity to make that decision.

What exactly are someone’s “best interests”?

Once it is established that there is a lack of capacity to make that decision, any decision made on behalf of them must be made in their best interests.
The Mental Capacity Act sets out a number of considerations when making best interests decisions including:

  1. if the person is likely to recover capacity;
  2. their past and present wishes;
  3. the views of people interested in their welfare.

The individual should be encouraged to participate in the decision making as much as possible.

What are the Court Of Protection’s Powers?

The Court of Protection has wide powers. These include:

  • making declarations about capacity for individuals and their ability to make decisions about specific things
  • making decisions about property and finance or health and welfare matters
  • appointing and discharging deputies.

The Court can also make decisions relating to Lasting and Enduring Powers of Attorney.

The Court can appoint a Deputy if there is a need to make decisions on an ongoing basis. This is often the case with property and financial matters.

When a Deputy is appointed, the Court will decide what powers are given and they will be detailed in the order. There are certain decisions in the Mental Capacity Act that a Deputy is not authorised to make. These decisions will go back to the Court of Protection. These include:

  • decisions to settle assets in trust
  • making a will
  • prohibiting contact with another person
  • refusing life sustaining treatment.

As part of the proceedings, the Court will establish the issues, what evidence is needed in what format and who will provide the evidence.

Mental Capacity Act traumatic brain injury case study

Dean is a 29 year old man who has Traumatic Brain Injury caused by a road traffic accident that happened three years ago. Before the accident Dean was a sociable, active man who enjoyed spending time with his family and was always independent.

After the accident Dean moved into a residential home specialising in acquired brain injuries. This home is around 50 miles away from Dean’s family.

When Dean’s father, Paul, visits Dean, he tells his father that he wants to go home. Paul notices that Dean is becoming increasingly withdrawn and cries when he leaves.

The local authority has decided that Dean lacks the capacity to make decisions about where he lives and the care and support he receives. They feels that it’s in Dean’s best interests to stay where he is.

Dean’s father decides to make an application to the Court of Protection. He is appointed as Dean’s litigation friend.

At the first hearing, the Judge gives directions about the evidence needed. The Court wants an in-depth capacity assessment, disclosure of care home records and social care records and Dean’s father Paul may be required to write a witness statement.

The Judge also makes an order for the social worker to carry out a full assessment of Dean’s current care and support needs and to look into alternative types of accommodation. The social worker also explores what going home means to Dean and the possibility of independent supported living.

After looking at all the evidence, in the final hearing the judge decides that it would be in Dean’s best interests to move into an independent supported living placement closer to his family with a care package that would allow him to live a more active life.

This article has been produced with the assistance of member law firm Simpson Millar

Brain Injury Group member law firm Simpson Millar have offices in: Bristol, Cardiff, Kingston upon Thames, Leeds, London and Manchester.


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