Deprivation of clarity: Mental Capacity Act

October marks the fifth anniversary of the enactment of the-then long-awaited Mental Capacity Act 2005 (the Act). Ten years in the making at least, its real starting point was a 1995 Law Commission paper recommending an Incapacity Act. From that point, it took until 2005 for the Act to receive Royal Assent and it was October 2007 before any part of it was implemented.

Half a decade into the life of this major new piece of legislation has it succeeded in what it set out to achieve?

At its heart, surely, was a bid to create a legal framework for coping with the demands of a changing demographic – an ageing population. Yes, there were other people in mind: those with learning disabilities and acquired brain injuries, for example, but a core aim ?was to deal with the challenges of an ageing population.

The Office for National Statistics recently published the results of the 2011 Census and, to no one’s surprise, they tell us that the proportion of the population over 65 is far greater than it once was and is approaching a third of the population in some parts of the country. An ageing population means, among many other things, an increasing number of situations whereby a person, previously compos mentis, can no longer make a decision when one needs to be made and that means someone doing it for them.

As the Law Commission stated, the Act aimed to provide: “a new set of coherent answers to a single question. The question, put simply, is: ‘Who decides?’ Although it may be asked in a variety of situations for a variety of reasons, it arises whenever a person lacks the capacity to make a legally effective decision for him or herself.”

The previous framework was too loose and lacked the central plank that an act of parliament provides. There was ?a court of protection but it had nothing of the jurisdictional compass of the current one. Crucially, there was no jurisdiction in relation to welfare decisions; it was limited to consideration of financial affairs.

If there was a decision to be made then the doctors and others concerned would have to make an application to the High Court. High-profile cases ?came along with increasing regularity ?in terms of life-altering operations or life-terminating decisions for incapacitated people.

That court would then turn to the common law doctrine of necessity for guidance as to what to do in what were some of the most challenging cases imaginable. Similarly, prior to the creation of the Act, there was a power of attorney, but it did not (as the Act does) allow an attorney to make welfare decisions, only financial decisions.

There were provisions in the Mental Health Act 1983, to do with persons lacking capacity (including offences against such vulnerable people), but they were isolated in among provisions which were, fundamentally, aimed at the capacitous (albeit mentally disordered) patient.

What was needed was legislation that would draw together all these disparate strands and present them in a coherent way and in accordance with over-?arching principles.

How well has the Act fared so far, how coherent is it and does it make sense? Not just to lawyers, but to ordinary people who might want to avail themselves of its provisions, and to all those who care for people lacking in capacity, whether at home or in medical or care home settings. And, even if people can understand the framework created by the Act, can they use it? And that cannot be a merely theoretical question: can they actually use it? Let’s have a look at some of the key parts of the Mental Capacity Act and grade its performance to date.

Starting point

1. Assessment of capacity?

The Law Commission put two concepts right at the heart of the legislation: a person’s capacity and a person’s best interests. For the legislation to work then, these concepts needed to be understandable and readily applicable.

Probably the simplest and most effective part of the Act is the statutory test for assessing a person’s capacity. The very fact that there is a statutory test allows for greater confidence among professionals expected to assess people. Gone is the uncertainty that was inherent in the previous common law position and the two-stage test is clear and helpful.

One starts, as a matter of principle, with the presumption that all people have capacity to make all decisions. ?If a person crosses the diagnostic threshold, however (of having an impairment of, or a disturbance in the functioning of, the mind or brain), then one moves on to answer four questions which allow for a conclusion as to whether the subject of the assessment has or does not have the capacity to make the decision in question.

The subject of the assessment must be able to understand the information put to him, retain it long enough and be able to weigh the pluses and minuses in order to come to a decision and then communicate that decision.

While there are still question marks as to how this test is to be applied in certain contexts, it is generally a user-friendly test. What was also very helpful (and new) was the emphasis on capacity being ‘time and issue specific’. That is to say, one cannot test capacity, find that someone lacks it in respect of a certain decision, and then conclude they ‘lack capacity for all decisions and forever’. The question of capacity must be kept under review for other issues and at other times.?

Score: 8/10 ??

2. Best interests

A similarly positive assessment could be made of what follows if a person is found to lack capacity: a decision is to be made in their best interests. Determining what is in a person’s best interests was never going to be easy, but those drafting the Act have done well. They had of course the benefit of years of case law, which provided the jurisprudence. What they had to do was to convert that to a legislative format.

Score: 8/10

So, a good start for the Act, in terms of there being a coherent foundation.

Future planning

3. Lasting powers of attorney and deputyships

One of the aims of the creators of the Act was to improve on the then-available method of allowing others to make financial decisions for those unable to do so. Of course, the balance to be struck here (and in any such scheme) is the need to avoid excessive cost and bureaucracy (such as to maximise take-up by the public), versus the ?need to ensure, as far as is possible, protection against fraud: not an easy balance to strike.

Initially, the scheme was a little out of kilter. The forms and overall process were overly bureaucratic and drove many to distraction. In the first year of the Act the legal press brimmed with comments by solicitors seeking to register lasting powers of attorney (LPA), railing against the forms and officiousness of those tasked with receiving them.

However, over the intervening years, there has been a ‘righting’ of the balance. The LPA form has been reduced by almost half and has been made more user-friendly (in 2009 by way of a statutory instrument). It was recently announced that there is soon to be a facility for submitting ?such documents online – which will further improve the system.

In defence of the Office of the Public Guardian, there were clear indications that here was an office prepared to provide far greater scrutiny of such instruments and deputies than that provided by its predecessor. For example, in the first full year of the LPA scheme, the OPG had initiated approximately 300 investigations into the use of such instruments. Compare that with only 44 carried out by that body’s predecessor in its last year of existence.

Given that we know that there is financial abuse of vulnerable people, this more robust approach must be right – despite what that means in terms of a slower and less flexible process. Another benefit is that all such instruments have to be registered and so there is a record of all such tools. That, surely, has to be a better system than one where no one had a good idea as to how many attorneys were out there.

Score: 5, initially, climbing to a current score of 7/10

?4. Advance decisions

One of the aims of the Mental Incapacity Bill (as per modern practice, a negative was converted into a positive and we were left with a Capacity Act) was to create mechanisms whereby members of the public could plan for the future, for anticipated lack of capacity. In addition to those referred to above (LPAs and deputyships), advance decisions (AD) were developed – and were considered a particularly new and potentially very helpful provision.

Such decisions are made when a person has the capacity to make them, but are then projected forward to a point when capacity has been lost. As long as the AD is valid and applicable (no easy task) then it ought to be treated as binding, on a medical professional for instance, as one made by a capacitous person in that moment.

However, one of the biggest problems is affordability and that was clearly evidenced in the case of W v M, where a family making an application for the withdrawal of artificial nutrition and hydration was forced to rely on the willingness of a firm to act pro bono: not a scenario likely to be repeated, given the cost of such complex litigation.

A further problem is anecdotal evidence to the effect that the medical profession does not feel confident relying on advance decisions when it comes to critical situations, despite the fact that they appear to be valid and applicable.

Score: jury is out.

But no criticism can be levelled at the drafters of the Act. Issues concerning such decisions are fraught with difficulties and there is an almost constant debate in the media concerning this controversial medico-legal area. There does appear to be an appetite among the public for advanced planning of this type, but that appetite is not enough on its own. For there to be greater use of such instruments, there will need to be changes in terms of medical response to them and that will take time.

Shaky ground

Not a bad start then. The MCA showed signs of maturing well over the first two years. Where things start to go awry is when we encounter the dreaded deprivation of liberty safeguards (introduced two years into the existence of the Act). With these, a further concept was added to the mix: deprivation of liberty. The concept has not fared as well as the two referred to above.?

5. Authorising the deprivation of liberty of incapacitated individuals

The Mental Capacity Act started off ?life as a coherent piece of work and ?was doing very nicely when, in April 2009, it was amended and sections 4A and 4B, together with a couple of weighty and rather impenetrable schedules, were attached to this previously carefully constructed statute.

The schedules were the UK government’s answer to a finding of the European Court of Human Rights (HL v UK), which meant that, should a person who lacked capacity to make a decision about residence be found to be deprived of their liberty in a hospital or care home, then that deprivation would have to be formally authorised and not fudged, as was previously the case. The scheme created was termed the deprivation of liberty safeguards.

The scheme fails on numerous fronts: it is far too complicated and yet contains no reference procedure whereby an incapacitated person has the legality of their detention reviewed at intervals (despite the fact that there is such a process in the Mental Health Act where, arguably, those detained under that Act are more capable of making an application for themselves).

Challenges to its use are extremely expensive and remote from the participants (in stark contrast to the work of the Mental Health First Tier Tribunal, which considers appeals from patients detained under the Mental Health Act). Such challenges often also require the assistance of the Official Solicitor as litigation friend, but that office has not been resourced to meet the demand.

The Court of Appeal has not helped matters. Recent decisions (P and Q and Cheshire West) in relation to when there is or is not a deprivation of liberty and therefore whether the scheme needs to be applied, are very complicated and clash with what was, hitherto, relatively straightforward guidance.

Fortunately, there is the hope that things will be clarified as the Supreme Court is soon to look at the definition of deprivation of liberty.

The fundamental problem with the scheme is that it involves expecting a mental health professional (not a lawyer, although I can’t think of one that would not struggle to define the concept, given recent case law) to come to a conclusion, not on medical or social grounds (as is the case with the Mental Health Act), but as a legal concept, as to whether or not a person is deprived of their liberty.

One can reasonably expect such an assessor to come to a view on whether a person is suffering from a mental disorder and whether there are risks relating to that person or another, both of which are well within the expertise of a suitably trained socio-medical professional.

One cannot, however, realistically expect a similarly trained assessor to make a decision on whether a person is deprived of their liberty – or at least not when they are expected to have a better knowledge of this currently extremely complicated area of law than the vast majority of lawyers.

Whenever a code of practice to a piece of legislation (which is supposed to assist the layperson to put the limited text of legislation into a practical context) informs the reader, as the code to the Mental Capacity Act does, in terms, to “be knowledgeable in relation to the jurisprudence of the European Court of Human Rights in relation ?to the definition of deprivation of liberty”, one knows that something is seriously wrong.

The scheme is also not working well on a practical level. Challenges to detention are extremely costly. This is partly to do with the majority of cases being listed in London rather than in the regions (although fortunately this is changing) and due to the number of parties and lawyers involved.

This is in stark contrast to the relatively very cheap process for challenges brought by patients detained under the Mental Health Act 1983. In those cases, a panel of three experts, chaired by a judge, visits the unit in question and determines the ?criteria fairly speedily.

Score: 2/10

Moving forward

In basic terms, my assessment of ?the performance of the Act over these last five years can loosely be divided ?into three:

1. an extremely helpful advance on what went before, providing clear fundamental principles, a statutory test for capacity and best interests and a new Court of Protection, with a far greater jurisdictional span;

2. a ‘work in progress’ in respect of the ‘planning for the future’ provisions; and

3. a real mess when it comes to a method for depriving incapacitous people of their liberty.

The only way in which there can be progress on the latter is if there is a simplified approach to the definition of deprivation of liberty.

However, even if there is such clarity, the current approach to dealing with challenges to such deprivation cannot viably continue. Not unless there is a delegation downward, from the senior judiciary of the Court of Protection, to district judge level and from the London-centric approach of listing, to listing in the regional Court of Protection. The current demands on the Official Solicitor and the judiciary appear to be unsustainable.

Mental Capacity Act: key dates

• February 1995: Law Commission publishes paper recommending an Incapacity Act.
• December 1997: Government starts consultation process with ‘Who decides: making decisions on behalf of mentally incapacitated adults’.
• October 2004: European Court of Human Rights decides the case of HL v UK (Bournewood), which leads to the amendment of the Mental Capacity Act.
• April 2005: Act receives Royal Assent.
• April 2007: Code of Practice to the Act issued.
• October 2007: Key parts of the Act come into force.
• October 2007: Office of the Public Guardian created as an executive agency of the Ministry of Justice.
• June 2008: Second Code of Practice published to provide guidance in relation to the use of the deprivation of liberty safeguards.
• October 2008: Rise in number of complaints leads to consultation on LPA forms.
• April 2009: Act amended by the Mental Health Act 2007 to create a process for authorising deprivation of liberty.
• October 2009: LPA form is reduced by almost a half.
• October 2010: Post-legislative assessment is carried out and published by the Justice Select Committee.
• December 2011: Court of Protection (Amendment) Rules 2011 come into force.