Private client focus | Update: Court of Protection

Practitioners familiar with the area will recall that this is a very important moment in the life of the Mental Capacity Act 2005 (MCA 2005).

The House of Lords has convened a Select Committee to review and report upon its implementation. The Supreme Court is also shortly to deliver judgment in the first case in which it has considered the Act, the appeal against the decision of the Court of Appeal in Aintree University Hospitals NHS Foundation Trust v James [2013] EWCA Civ. 65, concerning the circumstances under which life-sustaining treatment can '¨be withheld.

The recent past has also been eventful for the MCA 2005, including the first known decision that it is in an adult's best interests for a marriage not to be annulled, despite their incapacity to enter into it (Sandwell Metropolitan Borough Council v RG [2013] EWHC 2373 (COP)) and important decisions by Senior Judge Lush as to the scope of duties upon deputies and attorneys (Re Buckley [2013] COPLR 39, Re GM [2013] COPLR 290 and Re Joan Treadwell (Deceased) [2013] EWHC 2409).

However, in this article, we concentrate on three cases in which the courts have clarified the scope of the two central elements of the MCA 2005: capacity and best interests.

Undoubtedly the most important decision of the past six months is that of the Court of Appeal in PC and NC v City of York Council [2013] EWCA Civ. 478.

The Court of Appeal dismissed the official solicitor's appeal against the decision of Hedley J that it was in the best interests of a married woman to return to live with a convicted sex offender after his release from prison. The central plank of the appeal concerned the holding of Hedley J that capacity to decide upon contact was person- specific: i.e. that the question for the court was not (as the official solicitor had argued) whether the woman had or lacked capacity to make decisions upon the issue of contact, but whether she had capacity to decide upon contact with her husband.

The Court of Appeal upheld the official solicitor's appeal on the facts, but rejected his appeal upon the law. Giving the lead judgment, McFarlane LJ held that the determination of capacity under the MCA 2005 was decision specific: while some decisions, set down in section 27, are status or act-specific (such as agreeing to marry or consenting to divorce), others are person-specific (such as decisions upon contact), and removing the factual context from such decisions would leave nothing for the evaluation of capacity to bite upon. McFarlane LJ also went on to make clear that there has to be a clear causative link between any mental impairment ('the diagnostic element', set down in section 2) and the inability of the person to take the relevant decision ('the functional element', set down in section 3).

In light of City of York, it is necessary that we are all very clear whenever asked to advise about an adult who may lack decision-making capacity that that we can satisfy ourselves of the answers to the following questions:

 What, exactly, is the decision that is in issue (remembering that, for instance, a decision to make a will disposing of a small estate is not the same as a decision as to whether to make a will disposing of a large and complex estate)?

 If it is not an act-specific decision that can safely be divorced from the surrounding facts (for instance, as to whether to marry), what exactly are those facts?

 Can it properly be said that the apparent inability to make the decision is caused by a mental impairment?

 If not, does it relate to the exercise of influence by another upon the adult? If so, is this a case in which the "great safety net" of the inherent jurisdiction of the High Court should be invoked (see the decision of the Court of Appeal in Re DL v A Local Authority and Others [2012] EWCA Civ. 253).

Under the radar

The other main aspect of the MCA 2005, '¨the best interests test, has been subjected '¨to scrutiny in an important decision in '¨the Administrative Court which has '¨not perhaps received the publicity that '¨it should.

In R (Chatting) v (1) Viridian Housing (2) London Borough of Wandsworth [2012] EWHC 3595, a judicial review was brought against the local authority's decision to reorganise the provision of residential accommodation of an elderly lady.

Central to the challenge was that the local authority had failed in a duty to provide care in a way to her that took into account her best interests. Nicholas Paines QC, sitting as a deputy High Court judge, rejected this submission, holding the fact that the lady did not have capacity to make decisions regarding her care did not import the test of 'what is in her best interests?' as the yardstick by which all care decisions had to be made.

Rather, he emphasised, the decision-making criteria and procedures set down by sections 1(5) and 4 MCA 2005 are designed to be a substitute for the lack of capacity of the person to take the decision for themselves, and therefore only come into play where the person (had they capacity) would participate in the taking of a decision.

The implications of the decision in Chatting go some way beyond the narrow confines of the facts of the case. In particular, they make clear the error that we find regularly infects decision-making as regards the incapacitated. In the public law context, a decision as to the delivery of community care (or indeed healthcare) is not, in fact, a best interests decision, but a public law decision taken for the benefit of the individual based upon the assessment of (1) what the person's needs are; and (2) whether what is to be offered properly meets those needs.

Equally, in other contexts, it is necessary to be clear whether this is a decision that the adult would have taken, or participated, in taking. If it is, then one is squarely within sections 1 (5) and 4 MCA 2005. If not, then using the phrase 'best interests' both risks mischaracterising the end result of the decision-making process and, worse, analytical incoherence in the process itself.

Scope of defence

Finally, another case which may not have crossed the radar but which, again, gave important guidance upon decision-making under the MCA 2005 and, in particular, the scope of the defence under section 5. This defence is relied upon on a daily basis by millions of people taking 'informal' best interests decisions in respect of the care and treatment of adults without incapacity. In The Commissioner of Police for the Metropolis v ZH [2013] EWCA Civ. 69, the facts of which are irrelevant, Lord Dyson MR (giving the sole reasoned judgment) emphasised that a striking feature of the statutory defence is the extent to which it is permeated by the concepts of reasonableness, practicability and appropriateness.

He also, by implication, endorsed the approach of the first instance judge, Sir Robert Nelson, who had held that it was not necessary that the person seeking to rely upon the defence had specific sections of, or indeed the Act itself, in mind, so long as they can establish that they, in fact, reasonably believed the matters required of them under section 5.

The dicta of Lord Dyson MR are therefore of no little comfort to those making 'informal' best interests decisions, but the case leaves open the question of whether (and in what form) compliance with the best interests checklist set down in section 4 is necessary before the defence can be raised. The submission was made to the Court of Appeal that such compliance was necessary; while recognising its force, Lord Dyson did not decide upon it.

Fortunately, the question is currently under judicial consideration in a case involving decision-making by family members, and a judgment is expected shortly, which also likely to address the relevance of the Code of Practice which is, broadly, binding upon those acting in a professional capacity, but not upon family members or informal carers: precisely those who are least likely to be aware of the 'procedural' requirements of section 4.

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