When we cease caring

The Law Society’s Mental Health and Disability Committee have recently drawn attention to a “depressing lack of awareness” about the law of mental capacity and the proper application of the Mental Capacity Act 2005 (MCA 2005).

As a mental capacity litigation specialist with Richard Nelson LLP, Nottingham, I wholeheartedly agree with these concerns.

In recent months I have found it both depressing and intensely frustrating that some of the fundamental principles of MCA 2005 and its accompanying Code of Practice have had to be set out or explained in detail for many organisations, before a sensible discussion about legal solutions to a problem can commence.

Within the last three months, for example, I have had to deal with:

• A high street bank which has insisted upon seeing evidence of a lack of mental capacity before accepting the validity of a Lasting Power of Attorney. The same bank also expected to see individual written confirmation from the Office of the Public Guardian (OPG) before accepting any instructions from the attorney in this case.
• A local authority which has seemingly refused or failed to ask the opinion of a man who appears to retain capacity, concerning whether he wishes to see his partner of 12 years or remain in a care home, where he has been placed without his express consent, by his children. Many decisions about this gentleman are being made without assessing his capacity, first properly consulting with him or exploring his wishes through an Independent Mental Capacity Advocate (IMCA).
• When allegations of neglect, emotional abuse or undue influence have been made, local authority social workers undertaking casual interviews with the alleged victim, in the presence of the alleged abuser; and
• Care home managers working with the family of a resident to decide arbitrarily who gets to visit the resident in the care home, without recognising that interfering with the resident’s rights and freedoms of social contact (and those of the visitor) must be properly authorised as a deprivation of liberty under the Deprivation of Liberty Safeguards (DoLS).

On each of these occasions, I have had to persuade the relevant organisation to seek legal advice about their position – often internal advice from a member of its own legal team – before progress can be made. There has been a consistent pattern in these cases of frontline care or social work professionals making important decisions on behalf of vulnerable people with inadequate information about capacity and without proper regard to the potential legal consequences of what they are doing.

It is true that some of the legal processes connected with mental capacity can be complex – such as applications to the Court of Protection and requests for authorisation under DoLS.

Nevertheless, the essential legal principles which lie at the heart of the MCA 2005 (the protection and liberation of incapacitated people, proportionate control and decisions being taken in their best interests) are not, in themselves, complex at all, even if the practical outworking of these decisions – such as how to care for an incapacitated person when there is fundamental disagreement about what should happen amongst family members – can be very difficult to manage.

The Law Society has complained that there is a “postcode lottery” in respect of the application of the MCA 2005. Some local authorities and care organisations have adopted the principles and practices enthusiastically and consistently, whereas elsewhere there is little sign of this. The picture is certainly variable.

The codification of mental incapacity law within MCA 2005 was universally welcomed as a significant improvement when the Act came into force in late 2007.

Some 5 years later, however, many believe that it is time to review what has worked well and what has not, to ensure that the fundamental principles of the Act are effectively applied and some of the most vulnerable people in our society are protected, helped and liberated by its application to their lives.