Gordon Ashton considers the new Mental Capacity Act, which is set to be implemented this October


As a solicitor, I used to encounter elderly people in residential care homes with whom one could have delightful conversations without them ever reaching a decision.



Not until I had a son with severe learning disabilities did I realise that the problem was more extensive, and now, in my work, I also meet brain-injured adults who cannot manage their finances. These conditions tend to be permanent, but anyone may experience a mental illness that renders that person temporarily incapable.



Financial affairs during periods of incapacity can be managed through enduring powers of attorney or the existing Court of Protection, but uncertainty or disputes over personal welfare and health-care decisions are more difficult to resolve.



In 1989 the Law Society's mental health sub-committee highlighted this legal vacuum and prompted the Law Commission to take up the issue. Its recommendation was that a new statutory jurisdiction should be created, and a decade later we have the Mental Capacity Act 2005. Implementation has been put back from April to October 2007 because much work has yet to be done, but the new regime is likely to affect us all at some time, in both our working and family lives. A code of practice will provide practical guidance and be updated as experience is gained.



Individuals may no longer be categorised as 'patients' and deprived of all autonomy. The Act provides that: 'A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.'



A person may thus lack capacity in regard to one matter but not another and capacity may fluctuate over time. A 'balance of probabilities' approach is adopted with a presumption of capacity. A person is unable to make a decision if he cannot understand and retain relevant information and then use it in making the decision, or cannot communicate a decision. This includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision. Adults should be helped to make their own decisions with simple explanations and may make decisions that others think unwise. A 'least restrictive' approach is to be applied to any intervention.



Having decided that an individual lacks capacity to make a particular decision, it becomes necessary to determine his best interests. This involves a checklist of factors aimed at identifying those issues most relevant to the individual. Not all the factors in the list may be relevant, but they must still be considered if only to be disregarded. They include:

l consideration of all relevant circumstances;

l whether the person will at some time have the required capacity;

l encouraging the person to participate in the decision;

l the person's past and present wishes and feelings;

l the beliefs and values that would be likely to influence the person's decision; and

l the views of others who should be consulted.



There are two areas of decision-making, namely, personal welfare (which includes health care), and property and financial affairs, with the Act adopting a four-tier approach by:

l providing a 'general authority to act' and an obligation to pay for 'necessary' goods and services;

l establishing lasting powers of attorney (LPA) for financial affairs or personal welfare and health-care decisions;

l empowering the new Court of Protection to make declarations or decisions, or to appoint a deputy to make decisions on the incapacitated person's behalf;

l putting the common law relating to advance refusals of medical treatment ('living wills') on a statutory footing.



Following the implementation of the 2005 Act, the new definition quoted earlier is likely to be substituted in part 21 of the Civil Procedure Rules 1998 and part IX of the Family Proceedings Rules 1991, and the term patient replaced by protected party.



The new Court of Protection may have the same name but it is a very different body. As if to demonstrate its importance, the President of the Family Division has been appointed as its President and the Chancellor of the Chancery Division as Vice-President. Based in London, there is a resident senior judge (initially the former Master of the old court) supported by three full-time district judges. It will also sit at Birmingham, Bristol, Cardiff, Manchester/Preston and Newcastle, with the jurisdiction being exercised largely by a small group of nominated district judges. Nominated circuit judges and High Court judges will hear the more serious cases and appeals.



There will be active case management on the lines of the Civil Procedure Rules but an attempt at alternative dispute resolution will be expected before any contested hearing because the court is intended to be a venue of last resort. Public funding is available subject to rigid criteria.



The Act's provisions apply in general only to people lacking capacity who are aged 16 years or older, but the property and financial affairs jurisdiction may be exercised in relation to children who will lack capacity into adulthood. The Act does not enable delegated decisions to be made on personal matters such as marriage or civil partnership, adoption and voting.



An 'independent mental capacity advocate' may be required to represent an incapacitated person when serious medical treatment is proposed or accommodation is to be provided by an NHS body or local authority. The Act also creates an offence of 'ill-treatment and neglect' on the part of carers, donees of LPAs and deputies.



The Public Guardianship Office did not have legal status, being merely a government agency providing administrative support to the old Court of Protection. The new Public Guardian will have a statutory existence and an office with staff to be known as the Office of the Public Guardian. Key functions include maintaining a register of LPAs and supervising deputies, but also promoting the new jurisdiction.



The Public Guardian will also provide the administration of the Court of Protection because close working is required for the majority of matters that are non-contentious. The Official Solicitor will represent an incapacitated person when required and there will be separate panels of special visitors and general visitors to provide reports for the court.



District Judge Ashton sits at Preston County Court and is a Deputy Master of the Court of Protection