The Mental Capacity Act 2005 provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. Everyone working with and/or caring for an adult (aged 16 years and over) who may lack capacity to make specific decisions must comply with this Act when making decisions or acting for that person. The same rules apply whether the decisions are life-changing events or everyday matters.
Before making an application under the Mental Health Act (MHA), doctors and Approved Mental Health Professionals should consider whether they could achieve their aims safely and effectively by using the Mental Capacity Act (MCA) instead. If a doctor believes that they can safely assess or treat a person under the MCA, they do not need to consider using the MHA.
Sometimes it will be necessary to consider using the MHA rather than the MCA because it is not possible to give the person the care or treatment they need under the MCA. But it is important to remember that a person cannot be treated under the MHA unless they meet the criteria for being detained. For example, compulsory treatment under the MHA is not an option if the patient’s mental disorder does not justify detention in hospital, or the patient needs treatment only for a physical illness or disability.
There is no reason to assume a person lacks capacity to make their own decisions just because they are subject (under the MHA) to detention, guardianship or supervised community treatment but people who lack capacity to make specific decisions are still protected by the MCA even if they are subject to the MHA (this includes people who are subject to the MHA as a result of court proceedings).
Subject to certain conditions and safeguards, the MHA allows health professionals to give patients, who are liable to be detained, treatment for mental disorders without their consent – whether or not they have the capacity to give that consent. But health professionals treating people for mental disorder under the MHA cannot simply ignore a person’s capacity to consent to treatment. As a matter of good practice (and in some cases in order to comply with the MHA) they will always need to assess and record whether patients have capacity to consent to treatment, and if so, whether they have consented to or refused that treatment.
Power of Attorney
Sometimes one person will want to give another person authority to make a decision on their behalf. A power of attorney is a legal document that allows them to do so. Under a power of attorney, the chosen person (the attorney or donee) can make decisions that are as valid as one made by the person (the donor).
Before the Enduring Powers of Attorney Act 1985, every power of attorney automatically became invalid as soon as the donor lacked the capacity to make their own decision. But that Act introduced the Enduring Power of Attorney (EPA). An EPA allows an attorney to make decisions about property and financial affairs even if the donor lacks capacity to manage their own affairs.
The Mental Capacity Act replaced the EPA with the Lasting Power of Attorney (LPA). It also increased the range of decisions that people can authorise others to make on their behalf. As well as property and affairs (including financial matters), LPAs can also be made to cover personal welfare (including healthcare and consent to medical treatment) for people who lack capacity to make such decisions for themselves. The donor can choose one person or several to make different kinds of decisions.
Since the Mental Capacity Act came into force in 2007, it is not possible to make new EPAs, although existing EPAs can continue to be used. An EPA must be registered with the Office of the Public Guardian when the attorney thinks the donor lacks capacity to manage their own affairs, or is beginning to lack capacity to do so.
Lasting Power of Attorney
Only adults aged 18 or over can make an LPA, and they can only make an LPA if they have the capacity to do so.
1. Personal welfare LPAs
LPAs can be used to appoint attorneys to make decisions about personal welfare, which can include healthcare and medical treatment decisions. The standard form for personal welfare LPAs allows attorneys to make decisions about anything that relates to the donor’s personal welfare. But donors can add restrictions or conditions to areas where they would not wish the attorney to have the power to act. A personal welfare LPA can only be used at a time when the donor lacks capacity to make a specific welfare decision.
A personal welfare LPA allows attorneys to make decisions to accept or refuse healthcare or treatment unless the donor has stated clearly in the LPA that they do not want the attorney to make these decisions. An attorney can only consent to or refuse life-sustaining treatment on behalf of the donor if, when making the LPA, the donor has specifically stated in the LPA document that they want the attorney to have this authority.
2. Property and affairs LPAs
A donor can make an LPA giving an attorney the right to make decisions about property and affairs (including financial matters). Unless the donor states otherwise, once the LPA is registered, the attorney is allowed to make all decisions about the donor’s property and affairs even if the donor still has capacity to make the decisions for themselves. In this situation, the LPA will continue to apply when the donor no longer has capacity.
Alternatively a donor can state in the LPA document that the LPA should only apply when they lack capacity to make a relevant decision. The fact that someone has made a property and affairs LPA does not mean that they cannot continue to carry out financial transactions for themselves. The donor may have full capacity, but perhaps anticipates that they may lack capacity at some future time. Or they may have fluctuating or partial capacity and therefore be able to make some decisions (or at some times), but need an attorney to make others (or at other times). The attorney should allow and encourage the donor to do as much as possible, and should only act when the donor asks them to or to make those decisions the donor lacks capacity to make. However, in other cases, the donor may wish to hand over responsibility for all decisions to the attorney, even those they still have capacity to make.
If a donor does not restrict decisions the attorney can make, the attorney will be able to decide on any or all of the person’s property and financial affairs.
Court of Protection
The Court of Protection is a specialist court to deal with decision-making for adults (and children in a few cases) who may lack capacity to make specific decisions for themselves.
The Court of Protection is a superior court of record and is able to establish precedent (it can set examples for future cases) and build up expertise in all issues related to lack of capacity. It has the same powers, rights, privileges and authority as the High Court. There will usually be a fee for applications to the court.
In cases of serious dispute, where there is no other way of finding a solution or when the authority of the court is needed in order to make a particular decision or take a particular action, the court can be asked to make a decision to settle the matter using its powers. However, if there is a need for ongoing decision-making powers and there is no relevant power of attorney, the court may appoint a deputy to make future decisions. It will also state what decisions the deputy has the authority to make on the person’s behalf. Deputies are only very rarely granted powers to make personal welfare decisions for the person - most deputies are appointed for property and affairs decisions.
It is for the court to decide who to appoint as a deputy. Different skills may be required depending on whether the deputy’s decisions will be about a person’s welfare (including healthcare), their finances or both. The court will decide whether the proposed deputy is reliable and trustworthy and has an appropriate level of skill and competence to carry out the necessary tasks.
Receivers appointed by the court before the Mental Capacity Act are treated as deputies and keep their existing powers and duties.
Appointeeship is where a person acts on behalf of another to receive their benefits and use the money to pay household expenses such as bills, food and personal items.
The Department for Work and Pensions acting on behalf of the Secretary of State can authorise someone else to act on a person’s behalf if the person is over 18 and incapable of managing their own affairs. This is called an appointment to act and the person or organisation appointed to act is called an appointee. An appointment to act is made under Regulation 33 of the Claims and Payments Regulations 1987.
At any one time, there must only be one appointee acting on the person’s behalf for all benefits administered by the Department for Work and Pensions.
An appointee can be an individual such as a relative or friend or an organisation such as a local authority or a firm of solicitors. An appointee would be responsible for everything to do with benefits such as completing and signing forms or reporting changes of circumstances.
An appointee is only able to manage benefits such as state pension, pension credit, housing and council tax benefit. An appointee is not able to manage bank accounts or private pensions.
Deprivation of Liberty Safeguards (DoLS)
These provide a lawful means of depriving a person of 18 years or over, who has a mental disorder and lacks capacity to make decisions about how they are to be cared for, of their liberty, if this is in the best interests of the person in order to keep them safe. DoLS only applies to people in hospitals or care homes.
For further information about Mental Capacity Act, including DoLS, please visit www.mentalcapacityact.wales.nhs.uk