MENTAL CAPACITY ACT 2005      Anselm Eldergill                           1
1 — Introduction                   2
The Old Common Law          Patient has capacity• Treatment required their consent.          Patient lacks capacity• The c...
Mental Capacity Act          Patient has capacity• Treatment requires their consent.         Patient lacks capacity• The M...
MHA and MCA patients             MHA RULES                           MCA RULES    Treatment for mental disorder       Trea...
2 — What do we mean by incapacity?                                     6
Who lacks capacity?   For the purposes of the Act, a person lacks    capacity in relation to a matter ‘if at the    mater...
Inability to make decisions       For the purposes of section 2 —       The information relevant to a decision includes  ...
3 — Key Principles & Best Interests                                      9
Statutory PrinciplesThe following principles apply for the purposes of the Act:                                           ...
Best InterestsThe person determining what is in the individual’s best interests must consider all therelevant circumstance...
Best Interests (2)4. Take into account, if it is practicable and appropriate to consult them, the views as to   what would...
4 — What are the new mechanisms?                                   13                                   13
Making decisions — New Mechanisms                   ADVANCE DECISION                                      Require         ...
5 — Advance Decisions                        15                        15
Advance decisions    DEFINITION OF AN ‘ADVANCE DECISION’An “Advance decision” is a decision made by an adultwith capacity ...
When not binding   Person lacked capacity to make it   Person still has capacity, so has not yet kicked in   Person cha...
ScenarioMr Smith has suffered from schizophrenia for manyyears. He has been detained on a number of occasions.His consulta...
Scenario   When Joan Moses was four months pregnant, she made an    advance decision stating that (a) she was not to have...
Scenario   When Joan Moses was four months pregnant, she made an    advance decision stating that she was not to have any...
6 — Lasting Powers of Attorney                                 21                                 21
Lasting Power of Attorney   A lasting power of attorney is a power of                        of            is         of ...
Scenario   Mr Jones has a long history of schizophrenia and many    negative symptoms. He makes a lasting power of attorn...
Scenario   Mr Jones has a long history of schizophrenia and many    negative symptoms. He makes a lasting power of attorn...
Scenario   A Mental Health Review Tribunal is reviewing the case of Mr Jones, a patient detained under    section 2.   S...
Scenario   Mr Jones is a restricted patient with a long history of schizophrenia. Some years ago,    he made a lasting po...
More about Personal Welfare LPAs                                   27                                   27
Personal Welfare LPAs LPAs can be used to appoint attorneys to make decisions about personal welfare, which can include he...
Personal Welfare LPAsDonors can add restrictions or conditions to areas wherethey would not wish the attorney to have the ...
Personal Welfare LPAs           LPAs and Advance decisionsIf the donor made an LPA after the advancedecision, and gave the...
Formalities & Registration                             31                             31
Legal formalitiesThe LPA must be a written document set out in the prescribed statutory form.The document must include pre...
Personal Welfare LPA Form              The Donor completes Part A of               the form              An independent ...
Personal Welfare LPA (2)                     Donors are advised to                      name up to five people to        ...
Personal Welfare LPA (3)                   None of the following                   pe r s o ns m a y b e a                ...
Personal Welfare LPA (4)   Each Attorney    must complete    Par t C                               36                    ...
Types of appointmentAttorneys can be appointed to act:    Jointly, which means that none of them                 E x a m ...
Registering an LPA: The basics  The LPA is made when it has been completed and signed by all          is              it  ...
Who can apply to register?   T h e D o n o r o r A t t o r n e y( s )    c an ap p l y t o r e g i st e r an    LPA.     ...
Applications by attorneysAttorneys appointed together must applyfor registration together.Where appointed jointly and seve...
Applications by donorsThe donor can register the LPA whilethey are still capable.There is no legal requirement to givenoti...
Applying to register an LPAAfter the last notice of intention toregister has been served, the personregistering the LPA (w...
FeesPersonal Welfare LPA registration fee       £150Property and Affairs LPA registration fee   £150Application to search ...
Fee exemptions & remissions                       Fee exemption  Where the person receives any of the following means-  te...
Objections to registrationOnly the Donor, the named persons or other Attorneys are able to object to theregistration of an...
TimescalesIf there are no problems, the OPG willset a registration date and let theapplicant(s) know when it is.This will ...
Urgent situationsAn unregistered LPA cannot be used to make decisions on the Donor’s behalf, or gainaccess to the Donor’s ...
Court applicationsIn general, you do not need permission toapply to the Court if the application relatest o p r o p e r t ...
Court application timescalesThe Court will contact the applicant within 25working days of receipt of the formalapplication...
Useful booklets                  50                  50
7 — Section 5                51                51
Liability for care or treatment              THE SECTION 5 PRINCIPLEWhere the section 5 conditions are satisfied, a person...
The 5 Section 5 Conditions 1     The act is one undertaken ‘in connection with’ another’ person’s care or       treatment;...
Detention and section 5       Deprivation of liberty   The person doing the act does        Restriction   √    more than ...
Whether deprived of liberty?‘The Court considers the key factor   ‘The concrete situation was that thein the present case ...
The Sessay CaseR v South London & Maudsley NHS Foundation Trust andThe Commissioner of Police for the Metropolis, on appli...
Sessay   On 7 August 2010, two police officers entered the private accommodation    of Ms Sawida Sessay following a compl...
SessayActions of the police   Ms Sessay brought proceedings against the police who    agreed that the following declarati...
SessayDetention in hospital prior to section 2   Ms Sessay arrived at the hospital at 09.20 on 7 August 2010.    The appl...
SessayHELD1.   Part II of the Mental Health Act 1983 provides a comprehensive code for     compulsory admission to hospita...
Scenarios   A naso-gastric tube is inserted in order to    treat an informal patient who suffers from    anorexia nervosa...
Scenarios   Ms Fox has a profound learning disability and    epilepsy. She is being cared for in a residential    care ho...
ScenariosThe local mental health Crisis Resolution Teamis visiting Ms Thomas at her home. She hasbeen referred to the team...
Scenarios   Sam Masters is a 42-year old man with a profound learning disability who    also has a diagnosis of schizophr...
8 — The Court of Protection                              65                              65
Supporting the Judges                                The Public GuardianThe Judges are supported by             Deputies  ...
Assistance & representation                              67                              67
Legal AidOnly where:(i) the proceedings are of overwhelmingimportance to the person whose health or welfareis the subject ...
McKenzie Friends          MAY DO                         MAY NOT DO   provide moral support for       act as the litigan...
The Court’s Powers                     70                     70
Re F — Jurisdiction   The issue in Re F was whether the Court of Protection has any jurisdiction to               in Re  ...
Re F (2)   The jurisdiction under section 48 has two stages. It is the second stage which                                ...
Power to make declarationsThe court may make declarations as to:   whether a person has or lacks capacity to             ...
The Court’s Section 16 Powers     A matter concerning the   person’s personal welfare or    their property and affairs    ...
Powers: Personal WelfareSubject to section 20 (restrictions on deputies),the powers under section 16 as respects P’sperson...
Permission for PW applicationsWhen deciding whether to grant permission to apply,                         to              ...
The threshold for permissionPermission ought to be granted if:                 to be         if   The application is not ...
Rules and guidance   Section 50(3) of the Mental Capacity Act 2005;   Part 8 of the Court of Protection Rules 2007;   P...
DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam), Sir  Nicholas Wall (President), CoP, 26 May 2010   The applicant NHS...
DH Case, …   Because of PS’s incapacity and phobia of hospitals and    needles, she would not submit to the operation and...
DH Case, …   The court received evidence concerning the steps necessary    (1) to ensure that PS attended hospital for th...
DH Case, …   In relation to the post-operative stage, it would be    necessary for PS to have a plastic cannula inserted ...
DH Case, …   Finally, the court received a detailed statement from a    learning disability community sister employed by ...
DH Case, …H EL D    The evidence clearly established that it was in P’s best interests to     undergo surgery in order to...
DH Case, …“After mature consideration, the Official Solicitor, on PS’s behalf, came tothe view that it was not necessary t...
Scenario   Until 1 December, F lived with his mother (the Applicant) and their    family in the county of Eastshire. F ha...
Scenario   In 2007, B sustained severe head injuries as a result of a road traffic    accident. He has made a personal in...
Powers: Property and AffairsSubject to section 20 (restrictions on deputies), the powers under section16 as respects P’s p...
Deputies           89           89
Appointment of Deputies                                        SECTION 16   If a person lacks capacity in relation to a m...
Code of Practice Example   A young woman receives a significant award of    damages following an accident at work, which ...
Should a Deputy be Appointed?                                92                                92
Re P [2010] EWHC 1592 (Fam), Family Division, Hedley J, 13 May 2010The applicants were the parents and sister of the perso...
Re P [2010] EWHC 1592 (Fam), Family Division, Hedley J, 13 May 2010….9. Therefore, the court ought to start from the posit...
G v E (also known as Re E) [2010] EWHC 2512 (Fam) CoP, 11                     October 2010, Baker JThe applicants (G and F...
HELDIt would not be appropriate to appoint G and F as deputies. The vast majority ofdecisions about incapacitated adults w...
Application forms                  Property and affairs applicationsApplication       Details of       Assessment of      ...
Interim orders (property)   Investigate and report orders   Freezing orders   Access to specified account to           ...
Standard Property Order — 11.1.   Kevin Taylor of [address] is appointed as deputy (“the deputy”) to                     o...
Standard Property Order — 25.5. The deputy may make provision for the needs of anyone who is                              ...
Additional property clauses1    Investment clauses2    Withdrawal of money clause3    Sale of home4    Proceeds of sale (i...
Investment Clausesa)a) The deputy is required, within six months of the date of                 is                        ...
Withdrawal of money limits   The deputy may withdraw a sum not    exceeding £x a year from the Court Funds    Office/fund...
Sale of home — medical evidence   The deputy is not authorised to                   is                     to    exchange...
Sale of home — proceeds of salea)a) Until a deputy for property and   affairs has been appointed for the   person, the app...
Sale of home — personal effectsa)a) The deputy is not authorised to dispose   of any personal effects which may have   a s...
Petsa)a) The deputy is required and authorised                is   to   to make arrangements to ensure that               ...
Purchase of landa)a) Subject to the following paragraphs, the deputy is authorised in the name and            to          ...
Section 117   Until further court order, the    deputy is not authorised to             is                 to            ...
NHS Continuing Health Carea)a) Subject to the following paragraph,             to   the deputy is authorised to instruct a...
9 — OPG Applications                       111
Interim orders (property)   Investigate and report orders   Freezing orders   Access to specified account to           ...
Scenario   Tony is aged 31. He was born with Down’s Syndrome. He is    an only child and has always lived with his mother...
Scenario   John is aged 21. When he was 12 he received £600,000    compensation following a road accident. His mother was...
Scenario   On 1 April 2007, P appointed X and Y to be her joint and several    donees for the purposes of the Mental Capa...
10 — Statutory Wills                       116
Jurisdiction   The Court of    Protection may    authorise a statutory    will (or codicil) to be    executed for a    pe...
Testamentary capacity‘A‘A patient is capable of making a valid will if s/he           is         of                     if...
Reasons for applying1.1. Inheritance tax reasons2.2. Benefits reasons3.3. To ensure that P’s estate is distributed   accor...
Intestacy Rules — Married persons          WITH CHILDREN                               NO CHILDREN   Spouse gets everythi...
Intestacy Rules — Unmarried    WITH CHILDREN                                     NO CHILDREN   Estate goes to children at...
The partiesThe applicant must name as a respondent:                        as1.1. any beneficiary under an existing will o...
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
Mental capacity act 2005 excluding do ls
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Mental capacity act 2005 excluding do ls

  1. 1. MENTAL CAPACITY ACT 2005 Anselm Eldergill 1
  2. 2. 1 — Introduction 2
  3. 3. The Old Common Law Patient has capacity• Treatment required their consent. Patient lacks capacity• The clinician was under a duty to give treatment which was necessary to preserve the patient’s life, health or well-being; and was in their best interests. 3
  4. 4. Mental Capacity Act Patient has capacity• Treatment requires their consent. Patient lacks capacity• The MCA applies whenever you wish to give care or treatment to an incapacitated person outside the Mental Health Act. 4
  5. 5. MHA and MCA patients MHA RULES MCA RULES Treatment for mental disorder Treatment for mental disorder• Section 2 patients • Informal patients• Treatment order patients • Short-term sections• CTO patients • Guardianship • Conditional discharge • Section 35 • Prison medical units + Treatment for physical health, e.g. heart condition 5
  6. 6. 2 — What do we mean by incapacity? 6
  7. 7. Who lacks capacity? For the purposes of the Act, 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.’ (s.2) It does not matter whether the impairment or disturbance is permanent or temporary. How does this provision affect people suffering from schizophrenia or mania? Section 27
  8. 8. Inability to make decisions  For the purposes of section 2 — The information relevant to a decision includes When a person lacks capacity to information about the reasonably foreseeable make a decision for her/himself — a consequences of deciding one way or another, person is unable to make a decision or failing to make the decision. for himself if he is unable:  to understand the information relevant to the decision, The fact that a person is able to retain the information relevant to a decision for a short  to retain that information, period only does not prevent him from being  to use or weigh that information as regarded as able to make the decision. part of the process of making the decision, or or A person is not to be treated as unable to make  to communicate his decision a decision merely because he makes an unwise (whether by talking, using sign decision … BUT language or any other means). Section 3 8;
  9. 9. 3 — Key Principles & Best Interests 9
  10. 10. Statutory PrinciplesThe following principles apply for the purposes of the Act: of1.1. A person must be assumed to have capacity unless it is established that he be to it is he lacks capacity;2.2. A person is not to be treated as unable to make a decision unless all is to be as to practicable steps to help him to do so have been taken without success; to to do so3.3. A person is not to be treated as unable to make a decision merely because is to be as to he he makes an unwise decision; an4.4. An An act done, or decision made, under the Act for or on behalf of a person or or on of who lacks capacity must be done, or made, in his best interests; be or in5.5. Before the act is done, or the decision is made, regard must be had to is or is be to whether the purpose for which it is needed can be as effectively achieved it is be a s in in a way that is less restrictive of the person’s rights and freedom of action. is of of Section 101) 1( 10
  11. 11. Best InterestsThe person determining what is in the individual’s best interests must consider all therelevant circumstances and, in particular, must1. Consider whether it is likely that the person will at some time have capacity in relation to the matter in question and, if it appears likely that he will, when that is likely to be;2. So far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.3. Consider, so far as is reasonably ascertainable, the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity); the beliefs and values that would be likely to influence his decision if he had capacity; and the other factors that he would be likely to consider if he were able to do so. Section 41 1 11
  12. 12. Best Interests (2)4. Take into account, if it is practicable and appropriate to consult them, the views as to what would be in the persons best interests and, in particular, as to the matters mentioned in paragraph (3) immediately above of anyone named by the person as someone to be consulted on the matter in question or on matters of that kind; anyone engaged in caring for the person or interested in his welfare; any donee of a lasting power of attorney granted by the person; and any deputy appointed for the person by the court.5. Not be motivated by a desire to bring about his death where the determination relates to life-sustaining treatment and considering whether the treatment is in the best interests of the person concerned. (“Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.) Section 42 1 12
  13. 13. 4 — What are the new mechanisms? 13 13
  14. 14. Making decisions — New Mechanisms ADVANCE DECISION Require capacity LPA DONEEMAKING DECISIONS COURT OR DEPUTY USE OF SECTION 5 14 14
  15. 15. 5 — Advance Decisions 15 15
  16. 16. Advance decisions DEFINITION OF AN ‘ADVANCE DECISION’An “Advance decision” is a decision made by an adultwith capacity that if:(a) at a later time a specified treatment is proposed tobe carried out by a person providing health care, and(b) at that time he lacks capacity to consent to thattreatment,the specified treatment is not to be carried out orcontinued. Section 26 14 16
  17. 17. When not binding Person lacked capacity to make it Person still has capacity, so has not yet kicked in Person changed their mind when they still had capacity It is not the treatment specified It is not the circumstances specified Person would not have made it had they anticipated the current circumstances 17 17
  18. 18. ScenarioMr Smith has suffered from schizophrenia for manyyears. He has been detained on a number of occasions.His consultant prescribes him Impotentox when he isacutely unwell. This has very unpleasant side-effectsfor him. He makes an advance decision refusing thetreatment in the event he becomes incapacitated. Ayear later, he relapses and is admitted to hospitalinformally. His consultant considers that he requires acourse of Impotentox. What is the legal position? 18 18
  19. 19. Scenario When Joan Moses was four months pregnant, she made an advance decision stating that (a) she was not to have a Caesarean section to in any circumstances, whatever the risk to herself or her baby; (b) this prohibition was to apply if she became incapacitated during birth for any reason. The doctors want to perform a Caesarean, failing which the baby is likely to die. Joan refuses to have the operation because of her needle phobia. Are the doctors bound by the advance decision? 19 19
  20. 20. Scenario When Joan Moses was four months pregnant, she made an advance decision stating that she was not to have any treatments or interventions during childbirth other than natural, herbal, treatments. The birth was to be at home, and she was not to be removed to hospital whatever the circumstances. Her midwife believes that the baby is likely to die unless s/he is removed to hospital for emergency treatment. Is the advance decision binding? 20 20
  21. 21. 6 — Lasting Powers of Attorney 21 21
  22. 22. Lasting Power of Attorney A lasting power of attorney is a power of of is of attorney under which the donor ("P") confers on on a donee or donees authority to make decisions or to about all or any of the following: or of P’s personal welfare or specified matters or concerning Ps personal welfare, and LPA Personal Welfare P’s property and affairs or specified matters or concerning Ps property and affairs, Property Affairs and which includes authority to make such to decisions in circumstances where P no longer in no has capacity. Section 92 2 22
  23. 23. Scenario Mr Jones has a long history of schizophrenia and many negative symptoms. He makes a lasting power of attorney, authorising his friend Emma to make personal welfare decisions for him should he become incapacitated. A year later, he is admitted to hospital informally and accepts treatment without really understanding what it is for. It is common ground that he is now incapacitated and Emma refuses her consent to him being given Impotentox. What is the legal position? 23 23
  24. 24. Scenario Mr Jones has a long history of schizophrenia and many negative symptoms. He makes a lasting power of attorney, authorising his friend Emma to make personal welfare decisions for him should he become incapacitated. A year later, he relapses and is admitted to hospital, but refuses Impotentox. His consultant and Emma take the view that he is now incapacitated. She consents to him being given Impotentox, if necessary using restraint. What is the legal position? 24 24
  25. 25. Scenario A Mental Health Review Tribunal is reviewing the case of Mr Jones, a patient detained under section 2. Some time ago, when he had been relatively well for some time and had the necessary capacity, he executed a Lasting Power of Attorney, appointing his spouse as his donee. When his mental state deteriorated recently, and he was considered to lack capacity to consent to treatment, his spouse refused to consent to the administration of any antipsychotic medication. This resulted in him being sectioned. Mr Jones doesn’t really understand his legal rights. However, he is compliant with treatment and it has not been necessary to give him medication by force. He says that he is willing to remain in hospital for the time being. Mrs Jones tells the professional preparing the social circumstances report that she is now willing to consent to one antipsychotic being administered for four weeks but at a lower dosage than currently prescribed. She is also willing for him to remain in hospital for another week or so, while she prepares his flat and after-care is arranged, at which point she thinks that he will be ready to be discharged. What is the legal position? 25 25
  26. 26. Scenario Mr Jones is a restricted patient with a long history of schizophrenia. Some years ago, he made a lasting power of attorney, authorising his sister, Pamela, to make decisions about his care and treatment should he become incapacitated. Then and now, he appears (a) to have capacity to appoint someone to make personal welfare decisions on his behalf but (b) to lack capacity to consent to the medication and treatment being prescribed for him. He continues to believe that the neighbour he killed was interfering with him and threatening him, and that he was acting in self-defence. A tribunal is reviewing his case and is minded to discharge him subject to conditions that he resides at Homecare Hostel, attends appointments with his consultant and supervisor as required, and takes medication as prescribed. The tribunal’s only significant concern is the effect of the LPA. Pamela is very coy about reserving her future “rights to consent or not to aspects of the treatment being proposed. I think he might be better off living on his own.” What is the legal position? 26 26
  27. 27. More about Personal Welfare LPAs 27 27
  28. 28. Personal Welfare LPAs LPAs can be used to appoint attorneys to make decisions about personal welfare, which can include healthcare and medical treatment decisions. Personal welfare LPAs might include decisions about:—where the donor should live and who they should live with—the donor’s day-to-day care, including diet and dress—who the donor may have contact with—consenting to or refusing medical examination and treatment—arrangements needed for medical, dental or optical treatment—assessments for and provision of community care services—participation in social activities, leisure activities, education or training—the donor’s personal correspondence and papers—rights of access to personal information about the donor—complaints about the donor’s care or treatment 28 28
  29. 29. Personal Welfare LPAsDonors can add restrictions or conditions to areas wherethey would not wish the attorney to have the power to act.For example, a donor might only want an attorney tomake decisions about their social care and not theirhealthcare.Before making a decision under a personal welfare LPA,the attorney must be sure that:• the LPA has been registered with the OPG;• the donor lacks the capacity to make the particulardecision or the attorney reasonably believes that thedonor lacks capacity to take the decisions covered by theLPA (having applied the Act’s principles), and• they are making the decision in the donor’s bestinterests. 29 29
  30. 30. Personal Welfare LPAs LPAs and Advance decisionsIf the donor made an LPA after the advancedecision, and gave the attorney the right toconsent to or refuse the treatment, the attorney canchoose not to follow the advance decision. Life-sustaining treatmentAn attorney has no power to consent to or refuselife-sustaining treatment, unless the LPAdocument expressly authorises this. Treatment under the Mental Health ActECT aside, an attorney cannot consent to or refusetreatment for a mental disorder for a patientdetained under the Mental Health Act 1983. 30 30
  31. 31. Formalities & Registration 31 31
  32. 32. Legal formalitiesThe LPA must be a written document set out in the prescribed statutory form.The document must include prescribed information about the nature and effect ofthe LPA (as set out in the regulations).The donor must sign a statement saying that they have read the prescribedinformation and that they want the LPA to apply when they no longer havecapacity.The document must name people (not any of the attorneys) who should be told ofany application to register the LPA, or should say that there is no-one they wishto b e tol d.The attorneys must sign a statement saying that they have read the prescribedinformation and understand their duties, e.g. to act in the donor’s best interestsThe document must include a certificate completed by an independent thirdparty, confirming that, in their opinion, the donor understands the LPA’spurpose; nobody used fraud or undue pressure to trick or force the donor intomaking the LPA; and there is nothing to stop the LPA being created 32 32
  33. 33. Personal Welfare LPA Form  The Donor completes Part A of the form  An independent person must complete Part B, confirming that, in their opinion, the donor is making the LPA of their own free will, and understands its purpose and the powers they are giving the attorney(s)  Each Attorney must complete Part C 33 33
  34. 34. Personal Welfare LPA (2)  Donors are advised to name up to five people to be notified of any application to register t h e L PA .  Once notified, if any of the named people have concerns about the registration – for example they feel that the donor was put under pressure to make it – they can object to the LPA being registered. 34 34
  35. 35. Personal Welfare LPA (3) None of the following pe r s o ns m a y b e a Certificate Provider: — A f a m i ly m e m b e r o f t h e d o no r o r o f a n Attorney — A b u s i n es s p a r t n e r o r p a i d e m p l o ye e o f t h e d o n o r o r a n A t t o rn e y a n y A t t o rn e y , including of another L PA o r E PA — An owner, director, manager, or employee o f a c ar e h o m e i n wh i c h t h e d o n o r l i v es , o r a m e m b er o f t h e i r f a m i l y 35 35
  36. 36. Personal Welfare LPA (4) Each Attorney must complete Par t C 36 36
  37. 37. Types of appointmentAttorneys can be appointed to act: Jointly, which means that none of them E x a m pl e s can act independently; or The donor may want both of Jointly and severally, which means that their attorneys to act together they may all act together, or one of them in relation to the sale of their can act independently; or property but want them to act independently (on their own) Jointly in respect of some matters and when managing their bank jointly and severally in respect of others. accounts. If a donor who has appointed two or more Similarly, a donor may attorneys does not specify how they appoint welfare attorneys to should act, they must always act act jointly and severally but jointly. specify that they must act Donors cannot give their attorneys the jointly in relation to giving right to appoint a substitute or successor. consent to surgery. But may name replacement attorneys. 37 37
  38. 38. Registering an LPA: The basics The LPA is made when it has been completed and signed by all is it by those who are required to sign. to An An LPA can be registered at any time after it is made but cannot be at it is be be used until it has been registered. it The benefit of registering an LPA shortly after it is made is that of an it is is it it will be ready to be used by the Attorney(s) when needed. be to be by If an If an application to register is made a long time before the LPA to is is is needed then the LPA may need to be looked at again from to be at time to time to make sure that the contents are still relevant to to to to the Donor’s circumstances. If If circumstances change, and aspects of the LPA need to be of to be changed to reflect this, a new LPA will need to be made. to to be Changes cannot be made to any part of a signed and certified be to of LPA. 38 38
  39. 39. Who can apply to register? T h e D o n o r o r A t t o r n e y( s ) c an ap p l y t o r e g i st e r an LPA. 39 39
  40. 40. Applications by attorneysAttorneys appointed together must applyfor registration together.Where appointed jointly and severally (i.e.,together and independently), any of themmay make the application. There is nolegal requirement to advise the otherAttorney(s) of the application. The OPGwill do this. Likewise, the the OPG willformally notify the Donor of anyapplication it receives to register an LPA.The named persons listed in the LPA mustbe notified of the intention to register theLPA, using Form LPA1. Once a decisionhas been taken to make an application toregister, this should be the first thing thati s d o ne . 40 40
  41. 41. Applications by donorsThe donor can register the LPA whilethey are still capable.There is no legal requirement to givenotice to the Attorney(s). The OPG willdo this.The donor must notify the namedpersons listed in the LPA, using formLPA1. Once a decision has been taken tomake an application to register, thisshould be the first thing that is done. 41 41
  42. 42. Applying to register an LPAAfter the last notice of intention toregister has been served, the personregistering the LPA (whether anattorney(s) or the donor) sends to theOPG the original LPA form, a completedapplication form (LPA2) and theappropriate fee.A separate registration fee is applicablefor each separate LPA registered.These completed forms should be sent to:Office of the Public GuardianArchway Tower2 J un c t io n R o a dL o nd o nN 1 9 5 SZ 42 42
  43. 43. FeesPersonal Welfare LPA registration fee £150Property and Affairs LPA registration fee £150Application to search LPA register £ 25Court of Protection application fee £400Court of Protection hearing fee £500 43 43
  44. 44. Fee exemptions & remissions Fee exemption Where the person receives any of the following means- tested benefits: Income Support; Income-based Job- Seeker’s Allowance; State Pension Guarantee Credit; A combination of Working Tax Credit and either Child Tax Credit, Disability Element or Severe Disability Element; Housing Benefit; or Council Tax Benefit. To apply for a fee exemption or remission, the person s h o u ld c o mp le t e t h e fo r m s h o w n . Fee remission See Table 1 (left). Gross annual income includes non- means-tested benefits and pensions. Persons ineligible for exemption or remission They may apply for the fee to be waived by writing a letter explaining their situation and including it with your application to the Court or the OPG. Postponement of fee Include a letter with the application, explaining the reason. 44 44
  45. 45. Objections to registrationOnly the Donor, the named persons or other Attorneys are able to object to theregistration of an LPA. ON FACTUAL GROUNDS ON PRESCRIBED GROUNDS— The Donor is bankrupt or interim bankrupt — The power purported to be created by(Property and Affairs LPAs); the instrument is not valid as an LPA, e.g. the person objecting does not believe the— The Attorney is bankrupt or interim Donor had capacity to make an LPA;bankrupt (Property and Affairs LPAs) — The power created by the instrument no— The Donor or the attorney is dead longer exists, e.g. the Donor revoked it at a— There has been dissolution or annulment of time when s/he had capacity to do so;a marriage or civil partnership between Donor — Fraud or undue pressure was used toand Attorney induce the Donor to make the power;—The Attorney(s) lack the capacity to be an — The Attorney proposes to behave in aAttorney under the LPA; way that would contravene their authority—The Attorney(s) have disclaimed their or would not be in the Donor’s bestappointment. interests. 45 45
  46. 46. TimescalesIf there are no problems, the OPG willset a registration date and let theapplicant(s) know when it is.This will be six weeks from the datethat the OPG gives notice to anypersons who did not join in theapplication to register.If there are any objections, it may notbe possible to register the LPA after sixweeks until these have been resolved. 46 46
  47. 47. Urgent situationsAn unregistered LPA cannot be used to make decisions on the Donor’s behalf, or gainaccess to the Donor’s money or assets. Therefore, a timely application to register isimportant.If an urgent decision needs to be made on the Donor’s behalf but the LPA has not yetbeen registered, a person can apply to the Court of Protection for an order to make thatdecision on the Donor’s behalf.It is therefore advisable for both Donor and Attorney(s) to work together to plan aheadand not leave registration to the last minute. Remember, an LPA can be registered anytime after it is created. 47 47
  48. 48. Court applicationsIn general, you do not need permission toapply to the Court if the application relatest o p r o p e r t y a n d a f f a i rs .In general, you do need permission if theapplication relates to personal welfare.The Court will aims to deal with applicationfor permission to apply within 14 days ofreceiving them.The Court will consider the applicant’sconnection to the person, their reasons forthe application, and the benefits andalternatives when deciding whether togrant permission.U s ua lly t h e C o ur t w i l l b e a b l e t o d e c id e apermission application without a hearing. 48 48
  49. 49. Court application timescalesThe Court will contact the applicant within 25working days of receipt of the formalapplication.Where no oral hearing is directed, the Courtwill give a direction within 21 weeks of receiptof the application.Where an oral hearing is directed by theCourt, it will set the hearing within 15 weeksof the direction. 49 49
  50. 50. Useful booklets 50 50
  51. 51. 7 — Section 5 51 51
  52. 52. Liability for care or treatment THE SECTION 5 PRINCIPLEWhere the section 5 conditions are satisfied, a person whodoes an act “in connection” with an incapacitated person’s an ancare or treatment is regarded as having the incapacitated or is asperson’s consent for the act.The person doing the act will only incur a legal liability if ifher/his act would have been unlawful if done with consent. ifNegligent acts are not protected. Section 5 52 52
  53. 53. The 5 Section 5 Conditions 1 The act is one undertaken ‘in connection with’ another’ person’s care or treatment; 2 The person doing it takes reasonable steps to establish whether the recipient has capacity; 3 S/he reasonably believes that the recipient lacks capacity; 4 S/he reasonably believes that it is in their best interests for act to be done; 5 If s/he uses restraint, s/he reasonably believes BOTH that it is necessary to do the act in order to prevent harm to the person and that the act is a proportionate response to the likelihood of their suffering harm and the seriousness of that harm. DEFINITION OF RESTRAINTFor these purposes, a person restrains another person if he (a) uses, or threatens to use, force to secure thedoing of an act which s/he resists, or (b) restricts their liberty of movement, whether or not they resist53 . 53
  54. 54. Detention and section 5 Deprivation of liberty The person doing the act does Restriction √ more than merely restrain the of liberty other person if s/he deprives that person of his liberty within the meaning of Article 5(1) of the Human Rights Convention, Deprivation X whether or not D is a public of liberty authority. Section 6 54 54
  55. 55. Whether deprived of liberty?‘The Court considers the key factor ‘The concrete situation was that thein the present case to be that the applicant was under continuoushealth care professionals treating supervision and control and wasand managing the applicant not free to leave. Any suggestion to the contrary was, in the Courtsexercised complete and effective view, fairly described by Lord Steyncontrol over his care and movements as “stretching credulity to breakingfrom the moment he presented acute point” and as a “fairy tale”.’behavioural problems on 22 July1997 to the date he wascompulsorily detained on 29October 1997.’ Bournewood Case (ECHR) 55 55
  56. 56. The Sessay CaseR v South London & Maudsley NHS Foundation Trust andThe Commissioner of Police for the Metropolis, on applic ofSessay [2011] EWHC 2617 (QB), Divisional Court, PitchfordLJ and Supperstone J, 13 October 2011 56 56
  57. 57. Sessay On 7 August 2010, two police officers entered the private accommodation of Ms Sawida Sessay following a complaint from a neighbour that she had not been caring properly for her child. The officers formed the view that Ms Sessay was mentally disordered and were concerned for her welfare and that of her child. The officers reasonably formed the view that it was in her best interests that she be taken to hospital for the purposes of being assessed and helped in relation to her mental health. They drove her and her child to Peckham police station, where the child was taken into police protection. Then they drove Ms Sessay to the Maudsley Hospital. The officers considered that Ms Sessay fell within the scope of section 135 of the Mental Health Act 1983 but they did not have a warrant and were not accompanied by an approved mental health professional or doctor. Instead, the officers relied upon section 5 of the Mental Capacity Act 2005 to justify taking her to hospital. On arrival at the hospital, the officers took her to the section 136 Suite. 57 57
  58. 58. SessayActions of the police Ms Sessay brought proceedings against the police who agreed that the following declaration be made: “1. Sections 135 and 136 of the Mental Health Act 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety. Sections 5 and 6 of the Mental Capacity Act 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136 of the Mental Health Act 1983. 2. The Claimant’s removal to hospital by [police] officers on 7th August 2010 was unlawful and breaches her rights under Article 5 and Article 8 ECHR.” 58 58
  59. 59. SessayDetention in hospital prior to section 2 Ms Sessay arrived at the hospital at 09.20 on 7 August 2010. The application to admit her under section 2 was not received by the Hospital Managers until 13 hours later. Ms Sessay claimed that:  She was deprived of her liberty during the 13-hour period prior to the decision to admit her under s.2;  There is no power to deprive patients of their liberty in psychiatric hospitals under the common law doctrine of necessity;  During this 13-hour period there was no lawful authority for the deprivation of liberty. Consequently, her 59 59 treatment constituted false imprisonment at common law and/or was in breach of Article 5 ECHR.
  60. 60. SessayHELD1. Part II of the Mental Health Act 1983 provides a comprehensive code for compulsory admission to hospital for non-compliant incapacitated patients such as the Claimant.2. The common law principle of necessity does not apply in this context.3. It is unlikely in the ordinary case that there will be a false imprisonment at common law or deprivation of liberty for the purposes of Article 5(1) ECHR if there is no undue delay during the processing of an application under sections 2 or 4.4. If a section 4 application could not be completed without undue delay then the trust’s staff might need to contact the police for them to consider using their powers of detention under s.136 MHA.5. The Claimant’s detention at the hospital on 7 August 2010 was unlawful and in breach of her rights under Article 5 ECHR. The Claimant was entitled to a declaration to this effect, together with damages for breach of Article 5 and for false imprisonment to be assessed, if not agreed. 60 60
  61. 61. Scenarios A naso-gastric tube is inserted in order to treat an informal patient who suffers from anorexia nervosa. Is this act protected under the Mental Capacity Act? 61 61
  62. 62. Scenarios Ms Fox has a profound learning disability and epilepsy. She is being cared for in a residential care home. Sometimes restraint is necessary to get her to take medication. Is this lawful? Ms Fox returns home at weekends. Can her parents use restraint where this is necessary in order to get her to take her medication? 62 62
  63. 63. ScenariosThe local mental health Crisis Resolution Teamis visiting Ms Thomas at her home. She hasbeen referred to the team as an alternative toformal admission to hospital. She says that shedoes not want to take medication. A syrup isgiven to her by a member of the team whosays restraint can be used under the MentalCapacity Act if she resists. 63 63
  64. 64. Scenarios Sam Masters is a 42-year old man with a profound learning disability who also has a diagnosis of schizophrenia. He has lived in residential care throughout his adult life. He lacks capacity to consent to medication for his mental illness and sometimes resists its administration. He is subject to guardianship under the Mental Health Act 1983. This enables his guardian (the local authority) to require him to reside at the residential home, and provides authority to return him there if he absents himself. The social worker responsible for the guardianship telephones the staff at the home and tells them that they now have statutory authority to administer the medication, using reasonable force when necessary. ‘It’s a community treatment order through the back door,’ she adds, so there will be no need to use section 3 in future. 64 64
  65. 65. 8 — The Court of Protection 65 65
  66. 66. Supporting the Judges The Public GuardianThe Judges are supported by Deputies Court of Protection Visitors 66 66
  67. 67. Assistance & representation 67 67
  68. 68. Legal AidOnly where:(i) the proceedings are of overwhelmingimportance to the person whose health or welfareis the subject of the proceedingsAND(ii) the Court has ordered or is likely to order anoral hearing at which it will be necessary for theapplicant for funding to be legally represented. 68 68
  69. 69. McKenzie Friends MAY DO MAY NOT DO provide moral support for  act as the litigants’ agent litigants; in relation to the take notes; proceedings; help with case papers;  manage litigants’ cases quietly give advice on any outside court, for aspect of the conduct of example by signing court the case. documents;  address the court, make oral submissions or examine witnesses. 69 69
  70. 70. The Court’s Powers 70 70
  71. 71. Re F — Jurisdiction The issue in Re F was whether the Court of Protection has any jurisdiction to in Re of to hear an application about a person unless and until the presumption of an of capacity is first rebutted. What is the position where the medical evidence is is concerning the person’s capacity is equivocal? isHeld Section 48 of the Mental Capacity Act 2005 enables the court to make “Interim 48 of to orders and directions” provided, firstly, that ‘there is reason to believe that is to [the person] lacks capacity in relation to the matter.’ in to This is plainly a lower threshold than “proof on balance of probability that [the is on of person] lacks capacity”. What is required is simply sufficient evidence to justify is is to a reasonable belief that [the person] may lack capacity in the relevant regard. in There are various phrases which might be used to describe what is required, be to is such as “good” or “serious cause for concern” or “a real possibility” that [the as or or “a person] lacks capacity, but the concept behind each of them is the same, and of is is is really quite easily recognised. 71 71
  72. 72. Re F (2) The jurisdiction under section 48 has two stages. It is the second stage which 48 It is provides the real protection for a person against undue interference with their affairs and their right to make their own decisions. The first stage is whether to is there is evidence giving good cause for concern that [the person] may lack is capacity in some relevant regard. Once that is raised as a serious possibility, in is as the second stage requires the court to consider whether ‘it is in [the person’s] to is in best interests to make the order or give the directions, without delay.’ to or In In this particular case, the unclear situation suggested a serious possibility that F might lack capacity to make decisions about her own care needs, to whether temporarily or on a more long term basis. That possibility was or on sufficiently serious, or real, that the court was entitled to take jurisdiction or to under section 48. Appeal allowed. 48 72 72
  73. 73. Power to make declarationsThe court may make declarations as to: whether a person has or lacks capacity to or to make a decision specified in the declaration; in whether a person has or lacks capacity to or to make decisions on such matters as are on as DECLARATIONS described in the declaration; in As to Capacity the lawfulness or otherwise of any act done, or or of or Lawfulness yet to be done, in relation to that person. to be in to The term “Act” includes an omission and a an course of conduct. of Section735 71 3
  74. 74. The Court’s Section 16 Powers A matter concerning the person’s personal welfare or their property and affairs Decisions about where to live The person lacks capacity in relation to it Decisions about contact The court may by order decide the matter or appoint a deputy to make decisions Decisions about medical treatment 74 74
  75. 75. Powers: Personal WelfareSubject to section 20 (restrictions on deputies),the powers under section 16 as respects P’spersonal welfare extend in particular to: deciding where P is to live; Decisions about where to live deciding what contact, if any, P is to have with any specified persons; making an order prohibiting a named person from having contact with P; Decisions about contact giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P; giving a direction that a person responsible for Ps health care allow a different person to take Decisions about medical treatment over that responsibility. Section5 7 71 75
  76. 76. Permission for PW applicationsWhen deciding whether to grant permission to apply, to tosection 50 of the Mental Capacity Act 2005 requires the 50 ofcourt to consider: to the applicant’s connection with the person concerned; the reasons for the asking the court to appoint a to deputy to make personal welfare decisions for the to person concerned; in in what ways the person concerned will benefit from having a deputy appointed to make personal to welfare decisions for them. whether those benefits can be achieved in any other be in way. 76 76
  77. 77. The threshold for permissionPermission ought to be granted if: to be if The application is not frivolous, vexatious, an abuse of process or an is an of or an otherwise illegitimate interference with the interests and rights of the person of concerned; and having regard to these considerations, on the materials available to the court, to on to the application deserves fuller investigation by the court. In other words, it is by In it is possible that the order sought may be in the best interests of the person be in of concerned. It is It is not appropriate at the permission stage to determine whether the at to person’s best interests will best be served by the appointment of the be by of applicant as their personal welfare deputy, by a decision of the Court in as by of in relation to their personal welfare, or by making no decision at all and relying to or by no at on on carers to provide appropriate care and treatment without consent under to section 5 of the Mental Capacity Act 2005. of 77 77
  78. 78. Rules and guidance Section 50(3) of the Mental Capacity Act 2005; Part 8 of the Court of Protection Rules 2007; Practice Direction PD8A; Paragraphs 8.11, 8.12 and 8.39 of the Mental Capacity Act 2005 Code of Practice. 78 78
  79. 79. DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam), Sir Nicholas Wall (President), CoP, 26 May 2010 The applicant NHS foundation trust sought declarations from the court that P have necessary surgery. P was aged 55. She suffered from a learning disability and lacked capacity to litigate and to make decisions about her future medical treatment. She had been diagnosed with cancer of the uterus. An MRI scan had not been possible, because of claustrophobia, and both radiotherapy and chemotherapy were considered not to be appropriate. Her treating doctors were in no doubt that she needed to undergo a hysterectomy and bi-lateral salpingo-oophorectomy (removal of the fallopian tubes and ovaries), and that without surgical intervention the tumour would spread and lead, ultimately, to her death. 79 79
  80. 80. DH Case, … Because of PS’s incapacity and phobia of hospitals and needles, she would not submit to the operation and the trust sought permission of the court to perform the surgery using force or sedation as necessary. Attempts had been made to explain the need for surgery to PS and she has agreed on a previous occasion to undergo an operation. However, she then failed (and on that occasion refused) to attend hospital for treatment. The clinical team reluctantly came to the conclusion that special arrangements would be needed to ensure that she had the operation and that she remained in hospital for her post operative recovery. 80 80
  81. 81. DH Case, … The court received evidence concerning the steps necessary (1) to ensure that PS attended hospital for the operation; and (2) did not leave it prematurely after the operation has taken place. The plan was for a consultant anaesthetist to travel with an ambulance crew to PS’s home, and in the event of her refusal to attend hospital for her to be given a dose of sedative (Midazolam) mixed with a soft drink such as Ribena. The only realistic risk envisaged would be if the patient became over-sedated and developed breathing difficulties. Hence the need to have a consultant anaesthetist on hand. In “a worst case scenario”, the anaesthetist envisaged an injection of a fast acting and very safe sedative (ketamine). 81 81
  82. 82. DH Case, … In relation to the post-operative stage, it would be necessary for PS to have a plastic cannula inserted in order to administer intravenous fluids and analgesic medication. PS would also be given analgesic medication which would have a sedative effect on her, thereby rendering it unlikely that she would be able to abscond. However, it might be necessary to use force as a last resort to ensure that she returned to her hospital bed. She would be closely monitored by nursing staff. 82 82
  83. 83. DH Case, … Finally, the court received a detailed statement from a learning disability community sister employed by the local NHS Trust. The nurse had spent a considerable amount of time building up her relationship with PS and her family, and she described previous attempts to persuade PS to go to hospital. She concluded that it would be necessary to have a “back up plan” in case she was unable to persuade PS to go to hospital for the operation. She emphasised that she would make “every effort” to try to avoid the use of a sedative. 83 83
  84. 84. DH Case, …H EL D The evidence clearly established that it was in P’s best interests to undergo surgery in order to treat her endometrial cancer. Because of her phobias, it might well have been necessary to sedate her in order to convey her to hospital. In those circumstances, it was necessary for the trust to authorise such treatment as being in Ps best interests and to use force, if necessary, to sedate and convey her to hospital. Following the operation, it would be necessary to detain P in hospital during the period of post-operative recovery. If it was in Ps best interests to have the operation, it was plainly in her interest to recover appropriately from it and, thus, it was not necessary to invoke the DOLs provisions. 84 84
  85. 85. DH Case, …“After mature consideration, the Official Solicitor, on PS’s behalf, came tothe view that it was not necessary to invoke the Deprivation of LibertyProvisions under Schedule 1 of the Act. I agree with that analysis. If it isin PS’s interests (as it plainly is) to have the operation, it is plainly in herinterests to recover appropriately from it. In this respect I found Dr RE’sevidence compelling.In conclusion I am entirely satisfied that it was right to make thedeclarations sought by the Trust, and although the application is unusualand may involve the use of force, I am nonetheless impressed by thecare and thought which have gone into ensuring that PS receives thetreatment which she plainly needs, and which it is plainly in her intereststo have.” PostscriptThe Official Solicitor has since clarified that the President decided in theparticular, time-limited circumstances of the case, that the deprivation ofPs liberty could be authorised by the Court, rather than by way of theuse of the NHS Trust of the DOLs provisions. 85 85
  86. 86. Scenario Until 1 December, F lived with his mother (the Applicant) and their family in the county of Eastshire. F has been estimated to have an IQ of 46. On 1 December, F left home to attend a day centre and did not return home. It appears that, with the assistance of the county council (the Second Respondent), he took up residence with a carer in a town in Eastshire and has not had any contact with his mother since. The Applicant submits that her son lacks capacity to (a) decide his place of residence and, by implication, to decide to leave the family’s home and to live elsewhere; (b) decide what contact to have with her and other family members; (c) litigate; (d) to make decisions about what information concerning his personal welfare should be shared with his mother. The Applicant further submits that it is in her son’s best interests to live with her and their family at home. The Second Respondent submits that F has capacity to decide where he lives, with whom he has contact, and to decide that information about him (including his whereabouts) should not be shared with third parties, including family members. 86 86
  87. 87. Scenario In 2007, B sustained severe head injuries as a result of a road traffic accident. He has made a personal injury claim by his mother and litigation friend and primary liability for the accident has been conceded by the insurers of the driver of the other vehicle. The applicant is a solicitor who has also applied to be appointed as his deputy for property and affairs. Disputes have arisen as to B’s best interests in terms of his rehabilitation, treatment and care, and place of residence. The applicant proposes that he should be required to receive a period of “in-patient rehabilitation”. In particular, he could and should be admitted for a period of 18 months to a distant private rehabilitation unit at a cost of over £200,000. Interim payments are being applied for to enable this. NHS Eastshire and Eastshire Council believe that it would be in B’s best interests to receive a period of assessment and/or treatment at the local East Town Hospital, which is part of the NHS. It is understood that B opposes, or is likely to oppose, any admission or prolonged admission to a rehabilitation unit. The applicant asks the court to make declarations or orders concerning B’s best interests. 87 87
  88. 88. Powers: Property and AffairsSubject to section 20 (restrictions on deputies), the powers under section16 as respects P’s property and affairs extend in particular to: Managing property the control and management of P’s property; the sale, exchange, charging, gift or other disposition of P’s Selling property property; Settling Property the acquisition of property in P’s name or on P’s behalf; the carrying on, on P’s behalf, of any profession, trade or business; Trade, profession, the taking of a decision which will have the effect of dissolving a business partnership of which P is a member; the carrying out of any contract entered into by P; Business partnership the discharge of Ps debts and of any of Ps obligations, whether Contracts legally enforceable or not; the settlement of any of Ps property, whether for Ps benefit or for Debts the benefit of others; the execution for P of a will (although no will may be made under Wills this power at a time when P has not reached 18); the exercise of any power (including a power to consent) vested in P Trust powers whether beneficially or as trustee or otherwise; the conduct of legal proceedings in Ps name or on Ps behalf. Legal proceedings Note that Schedule 2 supplements the provisions of section 18. Section8 8 81 88
  89. 89. Deputies 89 89
  90. 90. Appointment of Deputies SECTION 16 If a person lacks capacity in relation to a matter (or matters) concerning their personal welfare or their property and affairs, the court may: by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters, or appoint a person (a “deputy”) to make decisions on P’s behalf in relation to the matter or matters. COURT DECISION PREFERRED TO APPOINTMENT OF DEPUTY When deciding whether it is in Ps best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that: a decision by the court is to be preferred to the appointment of a deputy to make a decision, and the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. Section0 6 91 90
  91. 91. Code of Practice Example A young woman receives a significant award of damages following an accident at work, which  The court decides to resulted in serious brain damage and other appoint the sister and a disabilities. solicitor as joint and Her parents have recently divorced and are several deputies to arguing about how the money should be used decide where the young and where their daughter should live. She has woman will live and always been close to her sister, who is keen to be how to manage her involved but is anxious about dealing with such property and affairs. a large amount of money. 91 91
  92. 92. Should a Deputy be Appointed? 92 92
  93. 93. Re P [2010] EWHC 1592 (Fam), Family Division, Hedley J, 13 May 2010The applicants were the parents and sister of the person concerned, an exceptionallytalented musician who lacked capacity to make decisions about his accommodation,financial affairs and appearing at public events because of a learning disability. P wasalso blind and needed one to one care. The applicants applied to be appointed as P’spersonal welfare and financial deputies. The RNIB, which provided hisaccommodation, asked the court to consider if an independent deputy should beappointed in addition to the applicants, and also where he should live.HELD (Hedley J)“8. Since the principle of appointing deputies is fundamental to this part of the Act, itmust be appreciated that Section 16(4) has to be read in the context of the fact that,ordinarily, the court will appoint deputies where it feels confident that it can. It isperhaps important to take one step further back even than that, and for the court toremind itself that in a society structured as is ours, it is not the State, whetherthrough the agency of an authority or the court, which is primarily responsible forindividuals who are subjects or citizens of the State. It is for those who naturally havetheir care and wellbeing at heart, that is to say, members of the family, where theyare willing and able to do so, to take first place in the care and upbringing, not onlyof children, but of those whose needs, because of disability, extend far intoadulthood. It seems to me at least that the Act ought to be read subject to thatoverriding policy aim. 93 93
  94. 94. Re P [2010] EWHC 1592 (Fam), Family Division, Hedley J, 13 May 2010….9. Therefore, the court ought to start from the position that, where familymembers offer themselves as deputies, then, in the absence of familydispute or other evidence that raises queries as to their willingness orcapacity to carry out those functions, the court ought to approach such anapplication with considerable openness and sympathy. Therefore, it isprobably helpful to consider what it is that has resulted in the decision of thecourt being sought.” 94 94
  95. 95. G v E (also known as Re E) [2010] EWHC 2512 (Fam) CoP, 11 October 2010, Baker JThe applicants (G and F) were the sister and carer of the personconcerned, a 20-year-old man who lacked capacity. They applied for anorder that they be appointed deputies for his personal welfare and anorder that G and a professional be appointed deputy for his property andaffairs.G also applied for an order that she should be appointed in lieu of theOfficial Solicitor to act as Es litigation friend in all future legalproceedings.The court had earlier held that the second respondent local authority hadacted unlawfully in removing E, who suffered from severe disabilities, fromFs care.G and F argued that the absence in the 2005 Act of a general authority toact and take decisions was justification for the appointment of deputies incases such as this, and that the appointment of members of the familywas in accordance with the right to respect for family life under Article 8. 95 95
  96. 96. HELDIt would not be appropriate to appoint G and F as deputies. The vast majority ofdecisions about incapacitated adults were taken by carers and others without anyformal general authority. In passing the 2005 Act, Parliament ultimately rejectedthe Law Commissions proposal of a statutory general authority and opted for thesame approach as under the previous law by creating in section 5 as a statutorydefence to protect all persons who carried out acts in connection with the care ortreatment of an incapacitated adult, provided they reasonably believed that itwould be in that persons best interests for the act to be done.It was emphatically not part of the scheme underpinning the Act that there shouldbe one individual who as a matter of course was given a special legal status tomake decisions about incapacitated persons. Where there was disagreement aboutthe appropriate care and treatment or the issue was a matter of particular gravityor difficulty, the Act and Code provided that the issue should usually bedetermined by the court.It would be a misreading of the structure and policy of the Act, and amisunderstanding of the concept and role of deputies, to think it necessary toappoint family members to that position in order to enable them better to fulfiltheir role as carers. 96 96
  97. 97. Application forms Property and affairs applicationsApplication Details of Assessment of Deputy’s Fee Form property & affairs capacity Declaration of (COP1) (COP1A) (COP3) (COP4) £400 Personal welfare applications — Add: Permission Supporting Form Information (COP 2) (COP 1B) 97 97
  98. 98. Interim orders (property) Investigate and report orders Freezing orders Access to specified account to to to pay outstanding care home or or other fees Interim deputy order Suspension of EPA or LPA of or 98 98
  99. 99. Standard Property Order — 11.1. Kevin Taylor of [address] is appointed as deputy (“the deputy”) to of is as to make decisions on behalf of Peter Taylor that he is unable to make on of he is to for himself in relation to his property and affairs subject to any in to to conditions or restrictions set out in this order. or in2.2. The appointment will last until date/further order.3.3. The deputy must apply the principles set out in section 1 of the in of Mental Capacity Act 2005 and have regard to the guidance in the to in Code of Practice to the Act. of to4.4. The court confers general authority on the deputy to take on to possession or control of the property and affairs of Peter Taylor and or of of to to exercise the same powers of management and investment as he of as he has as beneficial owner, subject to the terms and conditions set out as to in in this order. 99 99
  100. 100. Standard Property Order — 25.5. The deputy may make provision for the needs of anyone who is of is related to or connected with Peter Taylor, if he provided for or might to o r if he or be be expected to provide for that person’s needs, by doing whatever to by he he did or might reasonably be expected to do to meet those needs. or be to do to6.6. The deputy may (without obtaining any further authority from the court) dispose of money and property of Peter Taylor by way of gift of of by of to to any charity to which he made or might have been expected to to he or to make gifts and on customary occasions to persons who are related on to to o r to or connected with him, provided that the value of each such gift is of is not unreasonable having regard to all the circumstances and, in to in particular, the size of his estate. of7.7. Reports …8.8. Security 100
  101. 101. Additional property clauses1 Investment clauses2 Withdrawal of money clause3 Sale of home4 Proceeds of sale (interim orders)5 Personal effects6 Pets7 Purchase of land8 Section 1179 NHS continuing health care funding 101
  102. 102. Investment Clausesa)a) The deputy is required, within six months of the date of is of of this order, to obtain and have regard to advice in writing to to in from an investment adviser regulated by the Financial an by Services Authority in relation to the investment of John in to of Smith’s funds.b)b) Provided that the written investment advice received under the preceding paragraph is first copied to the is to Office of the Public Guardian and the Court Funds Office, of the deputy is authorised to withdraw such sum or sums is to or from any funds of John Smith held in the Court Funds of in Office as is necessary to give effect to the written as is to to investment advice provided that any sums so withdrawn so are invested forthwith in accordance with the written in investment advice.c)c) Any investments made under the preceding paragraph may be varied subsequently by the deputy, and other be by investments made by the deputy, provided that any such by decisions are made in accordance with the procedure set in out in the preceding paragraph. in 102
  103. 103. Withdrawal of money limits The deputy may withdraw a sum not exceeding £x a year from the Court Funds Office/funds of Alan Smith without needing to obtain the prior approval of the Court of Protection. 103
  104. 104. Sale of home — medical evidence The deputy is not authorised to is to exchange contracts for the sale of of the property unless she has first received a written medical opinion from a registered medical practitioner who has treated the person during the previous month stating that in in their opinion the person is likely to is to require hospital or residential care for or the remainder of their natural life. of 104
  105. 105. Sale of home — proceeds of salea)a) Until a deputy for property and affairs has been appointed for the person, the applicant must ensure that the proceeds of sale of the of of property are paid to a solicitor with to a current practising certificate and kept by the solicitor to the court’s by to order in an interest-bearing client in an deposit account. Once a deputy has been appointed and has taken out the required security, the solicitor may transfer the net proceeds of of sale to the deputy appointed by the to by court. 105
  106. 106. Sale of home — personal effectsa)a) The deputy is not authorised to dispose of any personal effects which may have a sentimental value to Joan Smith or her family or descendants, such as photographs, personal letters, mementoes, family records, heirlooms and the like; and so far as practicable the deputy is to ensure that she has with her such of the same that are likely to give her pleasure or comfort and that the remainder are safely stored. 106
  107. 107. Petsa)a) The deputy is required and authorised is to to make arrangements to ensure that to John Smith’s cat Toby receives the same quality of care that it received of it while in his personal care and Toby is in is not to be destroyed unless a veterinary to be surgeon advises that this is necessary is on on clinical grounds in order to spare in to the pet significant suffering.b)b) The deputy is authorised to pay for the is to pet’s maintenance, care and veterinary fees from the funds of John Smith. of 107
  108. 108. Purchase of landa)a) Subject to the following paragraphs, the deputy is authorised in the name and to is in on on behalf of Manjit Singh to purchase such property upon such terms as to of to a s to price or otherwise as appear reasonable and appropriate to the deputy and or as to upon good title being shown to the said property to procure a conveyance to to transfer or assignment of the said property to her and for this purpose the or of to deputy may withdraw a sum not exceeding £375,000 from the funds of Manjit of Singh without needing to obtain the prior approval of the Court of Protection. to of ofb)b) The deputy must ensure that any property purchased in the name and on in on behalf of Manjit Singh is subject to a deed of trust and that one of the trustees of is to of of is is the deputy or a solicitor with a current practising certificate. orc)c) The deputy must further ensure that the trustees forthwith apply for the registration of themselves as the registered owners and at the same time of as at apply to the Chief Land Registrar to procure a restriction in the Proprietorship to to in Register of the title to the property in the following terms: ‘No disposition of of to in of the Registered Estate made during the lifetime of Manjit Singh is to be of is to be completed by registration without the written consent of the Court of by of of Protection. 108
  109. 109. Section 117 Until further court order, the deputy is not authorised to is to 117 use the money or property of or of Alison Drake to pay for to accommodation or after-care or services which she is entitled is to to receive free of charge of under section 117 of theof Mental Health Act 1983. 109
  110. 110. NHS Continuing Health Carea)a) Subject to the following paragraph, to the deputy is authorised to instruct a is to solicitor to advise and assist her in to in establishing and/or challenging John Smith’s entitlement to free NHS to continuing health care and s/he is is authorised to pay for the same from to the funds of John Smith. ofb)b) The deputy shall not issue any court proceedings without a further court order. 110
  111. 111. 9 — OPG Applications 111
  112. 112. Interim orders (property) Investigate and report orders Freezing orders Access to specified account to to to pay outstanding care home or or other fees Interim deputy order Suspension of EPA or LPA of or Penal notices 112
  113. 113. Scenario Tony is aged 31. He was born with Down’s Syndrome. He is an only child and has always lived with his mother. His father left the family home shortly after he was born and has had no contact for many years. Over the years his mother has saved around £15,000 for him, which is in a savings account. She became his deputy 7 years ago. Blankshire Social Services began adult safeguarding procedures last year when his mother failed to pay the required weekly contributions for social care being provided. His mother has not filed annual accounts with the Public Guardian for two years and has not paid the security premium during that time. She has not answered letters from the Public Guardian for six months. 113
  114. 114. Scenario John is aged 21. When he was 12 he received £600,000 compensation following a road accident. His mother was appointed as his deputy for property and affairs. John suffered some brain injury in the accident. He is impulsive. He has several convictions for drug-related offences (heroin, cannabis, cocaine). He is currently on remand but lives at home when not in custody. The court order authorises his mother to withdraw £50,000 per annum. No accounts have been filed for three years. The security premium has not been paid this year. His mother says that some of the money has gone on home improvements and a holiday for the family, and family living expenses. There is just over £3,000 in the deputy bank account. 114
  115. 115. Scenario On 1 April 2007, P appointed X and Y to be her joint and several donees for the purposes of the Mental Capacity Act 2005. The instrument was registered by the Public Guardian on 1 July 2009. The Public Guardian has applied to the court for orders under the Mental Capacity Act 2005 in relation to P’s property and a f f a irs . The court has been informed that the police believe that large sums of money cannot properly be accounted for, including £70,000 paid to X in 2008, £185,000 transferred to Z in Canada by X in 2010, £50,000 used to purchase silver in the name of one of X’s sons and £100,000 used to convert a coach house. 115
  116. 116. 10 — Statutory Wills 116
  117. 117. Jurisdiction The Court of Protection may authorise a statutory will (or codicil) to be executed for a person who lacks testamentary capacity. 117
  118. 118. Testamentary capacity‘A‘A patient is capable of making a valid will if s/he is of ifunderstands: the nature of the act and its effects, of the extent of the property of which s/he is of of is disposing, and can comprehend and appreciate the claims to which s/he ought to give effect.’ to to Banks v Goodfellow (1870) 118
  119. 119. Reasons for applying1.1. Inheritance tax reasons2.2. Benefits reasons3.3. To ensure that P’s estate is distributed according to her/his known wishes4.4. Because relying on a distribution according to the intestacy rules would not be appropriate 119
  120. 120. Intestacy Rules — Married persons WITH CHILDREN NO CHILDREN Spouse gets everything up to  If there are parents, brothers or £250,000 & personal possessions. sisters of the whole blood, nephew or nieces:- Anything remaining is divided into two:-  Spouse gets everything up to £450,000 & personal  Half to the children at 18 or possessions. earlier marriage.  Anything remaining is divided into  Half in trust during spouses two:- lifetime — he or she gets the  Half of this goes to spouse income. On spouse’s death this half goes to the children.  Half to parents. If no parent is living then it goes to brothers or If a child predeceases, leaving issue, sisters or their children. her/his issue will take her/his share between them. 120
  121. 121. Intestacy Rules — Unmarried WITH CHILDREN NO CHILDREN Estate goes to children at 18  Estate goes to parents. or earlier marriage.  If none, then to siblings of the whole blood or their issue. If a child predeceases, leaving  If none, then to siblings of the half blood or issue, his issue take per their issue. stirpes.  If none, then to grandparents.  If none, then to uncles and aunts of the whole blood or their issue.  If none, then to uncles and aunts of the half blood or their issue.  Lastly, estate goes to the Crown (or to the Duchy of Lancaster or the Duke of Cornwall). 121
  122. 122. The partiesThe applicant must name as a respondent: as1.1. any beneficiary under an existing will or codicil who is an or is likely to be materially or adversely affected by the to be or by application;2.2. any beneficiary under a proposed will or codicil who is or is likely to be materially or adversely affected by the to be or by application; and3.3. any prospective beneficiary under P’s intestacy where P has no existing will. noThe court will generally add P as a party and invite the OS to as O S toact as her/his litigation friend. as 122
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