Alison Graham-Well's presentation for the Exchange Chambers Annual Local Government and Social Landlord Conference, Liverpool Town Hall 4 November 2014

1. THE COURT OF PROTECTION –
A USER’S GUIDE
ALISON GRAHAM-WELLS

2. WHAT’S ALL THIS ABOUT
THEN?
The Mental Capacity Act (MCA) 2005 is an
extraordinarily wide-reaching piece of legislation: any
of us at any time could find ourselves incapable of
taking decisions about our health, our welfare, or our
finances. The Court of Protection, the specialist court
established by the MCA 2005 as the ultimate decision-maker
in relation to those lacking capacity to take
those decisions, is in consequence a court with a very
wide reach”
Preface to LAG’s Court of Protection Handbook

3. The aim of this presentation is to give you a
road map to the landscape in which the practice
and processes of the court take place

4. UNDERSTAND YOUR LEGAL
OBLIGATIONS
• Everyone working with, or providing care and
support for, a person over 16 years of age, who may
lack capacity to make decisions for themselves, is
required by law to understand and use the Mental
Capacity Act 2005 (MCA)
• Providers must also demonstrate to commissioners
how they are meeting their statutory obligations
under MCA through their planning processes and
practice

5. • The House of Lords Select Committee
published a report in March 2014. It found:
– MCA continues to be held in high regard
– MCA has not met the high expectations it raised
due to
• A lack of awareness and understanding
• A persistent culture of paternalism in health services,
and
• Aversion to risk in social care

6. • The Care Quality Commission’s report on the
use of DOLs Safeguards in 2014 found
– That the MCA was not well understood across all
sectors
– In some care homes (and hospitals), people’s
freedom to make decisions for themselves was
restricted without proper consideration of their
ability to consent or refuse

7. • The Care Act 2014 statutory obligation to promote
individual wellbeing sets the future direction of social
care. It recognises the importance of
Beginning with the assumption that the person is best
placed to judge their situation
• The MCA also places the person at the heart
of decision making

8. WHERE TO FIND
THE LAW & GUIDANCE
• Primary legislation – the Mental Capacity Act 2005
• Secondary legislations – orders, rules and regs
made under the authority of the Act
• Practice Directions, Practice Guidance and Codes of
Practice
• Case-law decisions
• European Convention on Human Rights
• Textbooks and textbook opinion

10. MENTAL CAPACITY ACT 2005
The purpose of the MCA 2005 is to provide a structure and
appropriate mechanism for making a decision on behalf of a
person who lacks or now lacks the capacity necessary to
exercise a citizen’s usual constitutional right to make their own
decision.
This is a matter of constitutional importance. Those capable of
acting are responsible for their acts and omissions and, being
responsible for them, accountable to others. The counterpart of
freedom and autonomy is accountability for acts freely and
autonomously done.

11. Part 1
• Persons who lack capacity
– Statutory principles (s1)
– Definitions of incapacity and best interests (Ss2-4)
– Legal protection for professionals and other carers in
respect of care and treatment given informally (s5-6)
– Payment for necessary goods and services (ss7-8); LPAs
(ss9-14)

12. • Part 2
– The Court of Protection and the Public Guardian
• Establishment, jurisdiction and powers of the Court of Protection
and the Public Guardian
• Part 3
– Miscellaneous and general
• Scope of the Act
• International protection of adults
• Interpretation
• Making of rules, regulations and orders

13. The Schedules
• Sch 1 – Lasting powers of attorney: formalities
• Sch 2 – Property and affairs supplementary
provisions
• Sch 3 – International protection of adults
• Sch 4 – Provisions applying to existing enduring
powers of attorney
• Sch 5 –Transitional provisions and savings
• Sch 6 – Minor and consequential amendments
• Sch 7 - Repeals

14. More Schedules
• Sch A1 – Hospital and care home residents:
deprivation of liberty
• Sch 1A – persons ineligible to be deprived of
liberty by the Act.
These schedules set out the deprivation of
liberty scheme inserted into the MCA 2005 by
the MHA 2007

15. RULES,
PRACTICE DIRECTIONS,
PRACTICE GUIDANCE,
REGULATIONS AND ORDERS,
AND CODES

16. Court of Protection Rules 2007
SI No 1744
(COPR)
– Rules governing the procedures of court
– Require parties to help the court in furthering the overriding
objective of dealing with cases justly
– Judges required to further the overriding objective with
“active case management”
– Cumbersome
• 202 rules in 22 parts
• Supplemented by 62 practice directions, numerous prescribed
forms and where necessary the CPR and FPR

17. • Practice directions
– Some repeat the rules in plainer English
– Others are substantive, eg:
• PD 9D – Applications by currently appointed deputies,
attorneys and donees in relation to the person’s
property and affairs
• PD 9E – Applications relating to serious medical
treatment

18. • Practice guidance
– Committal for Contempt of Court
• Practice Guidance issued on 4 June 2013 by Sir James
Munby, President of the Court of Protection
(supplements guidance issued on 3 May 2013)
– Transparency in the Court of Protection:
publication of judgments
• Practice Guidance issued on 16 January 2014 by Sir
James Munby, President of the Court of Protection

19. • Regulations and orders
– Lasting Powers of Attorney, Enduring Powers of
Attorney and Public Guardian Regulations 2007
• Completion and registration of enduring powers of
attorney
• Reports required of deputies
• Registers maintained by the Public Guardian

20. • Codes of Practice
– Separate codes on MCA as originally passed and
the DOLs provisions added in 2007:
• Mental Capacity Act 2005: Code of Practice
(Department for Constitutional Affairs, 2007)
• Deprivation of liberty safeguards; Code of Practice to
supplement the Mental Capacity Act 2005 Code of
Practice (Ministry of Justice, 2008)

21. JURISDICTION OF THE COP
• A creature of statute – CoP’s jurisdiction derives
entirely from the MCA 2005
• Only has jurisdiction to make a decision where the
person concerned lacks capacity to make the
relevant decision himself.
• The exception to this is the power to make interim
orders (s48)
• Consequential orders in the event of death or
recovery (CoPR)
• Cannot determine general civil disputes

22. WHAT IT CAN’T DO
• Exempt matters
– People falling outside the Act (s2(5) and (6), s18(3))
• Generally restricted to persons over the age of 16yrs
– Family matters falling outside the Act (s27)
• Consenting to marriage or civil partnership
• Consenting to sexual relations
• Consenting to a decree in divorce proceedings based on 2 years
separation
• Consenting to dissolution of civil partnership based on 2 years
separation
• Consenting to a child being placed for adoption by an adoption
agency

23. • Consenting to the making of an adoption order
• Discharging parental responsibility matters not relating to a child’s
property
• Giving consent under the Human Fertilisation and Embryology Act
1990
– Mental Health Act matters (s28)
• Briefly if a patient’s treatment is covered by the terms of the Mental
Health Act 1983 (MHA), that Act applies.
• Treatment may fall outside the MHA because it is treatment for a
mental health problem but MHA does not authorise giving it without
the person’s consent.

24. – Voting rights (s29)
• Nothing in the MCA 2005 permits a decision on voting at an
election for any public office, or at a referendum, to be made on
behalf of an incapacitated person

25. WHAT DOES IT DO THEN?
• MCA confers a number of diverse functions
relating to property and affairs and personal
welfare. Broadly by:
– Making Declarations
– Making Decisions
– Providing Guidance
– Resolving Disputes
– Supervision
– The Deprivation of Liberty Safeguards

26. S47(1) MCA
• Provides that Cop has
in connection with its jurisdiction the same powers,
rights, privileges and authority as the High Court
• However, CoP may only exercise these in
connection with its statutory jurisdiction
– eg. may grant an injunction preventing P from being
removed from home pending a determination of best
interests
– may not grant a freezing order to support litigation P is
bringing against a 3P.

27. APPLICATIONS & ORDERS
• Declarations (s15)
• Court orders/decisions (s16)
• Appointment of Deputies (s16)
• Powers in relation to Lasting Powers of Attorney (ss22 -23)
• Powers in relation to Advance Decisions to Refuse Treatment
(Ss24 – 26)
• Powers in relation to Enduring Powers of Attorney (Sch 4)
• “Other powers”
• Interim Orders

28. Declarations
• S15 MCA provides that CoP may make declarations
as to:
– Whether a person has or lacks capacity to make a
decision specified in the declaration
– Whether a person has or lacks capacity to make
decisions on such matters as are described in the
declaration
– The lawfulness of otherwise of any act done, or
yet to be done, in relation to that person

29. Section 16
• S 16
– Applies if a person lacks capacity in relations to a matter or
matters concerning their personal welfare or property and
affairs (s16(1)).
– Enables CoP by order to make the necessary decisions on
their behalf or to appoint a deputy to make those decisions
for the person.
– Powers of CoP are subject to the provisions of MCA, in
particular Ss1 (the principles) and 4 (best interests)
(s16(3)).
– Any order of CoP may be varied or discharged by a
subsequent order (s16(7))

30. Section 16 and personal welfare
matters
• CoPs s16 powers extend in particular to (s17):
– Deciding where a person is to live
– Deciding what contact, if any the person is to have with
specified persons
– Making an order prohibiting a named person from having
contact with the person
– Giving or refusing consent to the carrying out or
continuation of a treatment by a person providing health
care for that person
– Giving a direction that a person responsible for a person’s
health care all a different person to take over that
responsibility

31. Section 16 and property and financial
matters
• CoP powers extend in particular to (s18):
– Control and management of their property
– The sale, exchange, charging, gift or other disposition of
their property
– The acquisition of property in their name or on their behalf
– The carrying on of any profession, trade or business
– The taking of a decision which will have the effect of
dissolving a partnership
– The carrying out of any contract

32. – Discharge of the person’s debts and any of their
obligations, whether legally enforceable or not
– The settlement of any of their property, whether for their
benefit or for the benefit of others
– The execution for them of a will (although no will may be
made under this power when the person has not reached
18yrs of age)
– The exercise of any power (including a power of consent)
vested in the person whether beneficially or as a trustee or
otherwise
– The conduct of legal proceedings in the person’s name or
on their behalf.

33. Section 16 and the appointment of
deputies
• Who?
• 2 or more
• Successors
• Property and affairs
• Restrictions
• Security, reports and the Public Guardian
• Reimbursement and remuneration
• Revocation of appointment.

34. LPAs
MCA 2005 ss22 – 23 set out the court’s powers
where a person has:
•Executed or purported to execute an instrument
with a view to creating an LPA; or
•Such a document has been registered as an
LPA by the Public Guardian

35. • An LPA is not created unless s10 is complied
with, the prescribed document is registered,
the person creating it is an adult who had
capacity to execute it.
• What can the CoP do?
– Determine whether an LPA exists or still exists
– Examine and rule on impropriety or failure to act in
P’s best interests
– Interpret to LPA
– Authorise gifts

36. ADVANCE DECISIONS
• The CoP may make a declaration as to whether an
advance decision:
– Exists
– Is valid
– Or is applicable to a treatment
Nothing in an apparent advance decision stops a person
from providing life-sustaining treatment, or from doing any
act they reasonably believe to be necessary to prevent
serious deterioration in the relevant person's condition,
while a decision in respect of any relevant issue is sought
from the court (s26(5))

37. ENDURING POWER OF
ATTORNEY
• Available in England and Wales since
10/03/86
• From 01/10/07 replaced by LPAs
• As at 30/09/12 there were, approximately,
265,000 register EPAs
• Sch 4 MCA incorporates the Enduring Powers
of Attorney Act 1985

38. Inherent jurisdiction of the High
Court??
• Inherent jurisdiction of the HC continues to play an
important role in relation a vulnerable adult who,
even if not incapacitated by mental disorder or
mental illness, is, or is reasonably believed to be,
either:
– Under constraint or
– Subject to undue influence or
– For some other reason deprived of the capacity to make
the relevant decision, or disabled from making a free
choice, or incapacitated or disabled from giving or
expressing a real and genuine consent

39. • May not be used to impose a decision on a capacitous adult
• Used to facilitate “the process of unencumbered decision-making
by those determined to have capacity free from
external pressure or physical restraint in making those
decisions”
• Cop cannot exercise this jurisdiction
– Must be listed before a judge capable of exercising this
jurisdiction
• Puisne HC judge
• President of the Family Division
• The Chancellor
• Another holder of senior judicial office who is a member of the HC
per s4 SCA or sitting as an HC per s9 SCA

40. PROCEDURE
JURISDICTION
LEGAL NECESSITY
APPROPRIATENESS
PERMISSION

41. Jurisdiction
• Defined by MCA 2005 and only exercisable over
people who lack (or on, an interim basis, appear to
lack) capacity
• Remember the assumption in favour of capacity
must be displaced
• Remember the exemptions
• COPR r87 and PD 12B contain provisions for
disputing CoP’s jurisdiction

42. Legal Necessity
• In various situations an application is a legal
necessity, eg:
– In personal welfare
• A case involving non-therapeutic sterilisation or organ donation
• In cases where there is a dispute about whether a particular
treatment will be in P’s best interests
– In financial sphere
• Situations where there is a need for someone with capacity to
manage P’s property
See Code of Practice and PDs

43. Appropriateness
• Even if an application is not necessary, it may still be
appropriate to apply to CoP because it is reasonably
believed to be in P’s best interests.
– The Code of Practice sets out when the CoP should be
accessed, eg
• When there is a major disagreement regarding a serious decision
which cannot be settled any other way – including where P should
live (CP 6.12 and 8.28)
• A family carer or a solicitor asks for personal information about P to
consent to be revealed (eg where there have bee allegations of
abuse in a care home) (8.28)
• It is suspected that P is at risk of harm or abuse from a named
individual (8.28

44. • Very fact specific and depends on many factors, eg:
– Whether what is required can be done lawfully without the courts
involvement
– P’s wishes etc
– The likely benefit for P
• Ask in what way the application will benefit him
– The likely cost/harm to P –financially, emotionally
• Ask in what ways the application could harm P
– Affordability/risk of litigation costs
• Do not assume whatever the merits of the application that each party will bear own
costs or they will come from P’s estate
• The rules allow the court to look conduct before as well as during the proceedings
and whether it was reasonable for them to raise, pursue or contest a particular issue
– Evidence and the chances of success
• Is there sufficient cogent and admissible evidence to support the application?
• Is the court likely to be persuaded to exercise its powers?

45. – The availability of more appropriate alternative procedures and
remedies
• Can the matter wait until P recovers capacity?
• Does P still have capacity to complete an LPA?
• Can what is proposed lawfully and appropriately be done in P’s best interest under
MCA s5?
• Can you proceed under a different statute – MHA?
• Mediation?
• Appointment of an IMCA or other independent person?

46. Permission
• S50 MCA and COPR rr50 -52
– When deciding whether to grant permission CoP is
required to consider:
• Applicant’s connection with P
• The reasons for asking for the appointment of a deputy to make
personal welfare decisions for P
• In what ways P will benefit from having a deputy appointed
• Whether those benefits can be achieved in any other way
– This is a filtering stage to prevent frivolous, vexatious,
abusive or otherwise illegitimate interference with P’s
interests and rights

47. WHO APPLIES?
• In cases of legal necessity
– The relevant NHS body or LA (CP 8.8)
– Therefor if anyone considers an application should be
made
• They should first remind the NHS/LA of their responsibilities under
the MCA
• Where NHS/LA fails to make an application, it can be
made by another party
– P
– The Official Solicitor as litigation friend of last resort
– The Public Guardian
– AN Other – family and IMCAs

48. SOME IMPORTANT BITS
IN MORE DEPTH

49. THE PRINCIPLES
S1 MCA 2005
The following principles apply for the purposes
of the Act
•The presumption of capacity (s1(2))
•Duty to help the person to make their own decision where
possible (s1(3))
•Unwise decision making does not = lack of capacity (s1(4))
•Duty to act in the person’s best interests (s1(5))
•Duty to consider less restrictive options (s1(6))

50. Presumption of Capacity
S1(2) – A person must be assumed to have capacity
unless it is established that he lacks capacity.
•Starting point is always that a person has capacity to make a
particular decision.
•That remains the legal position until it is established that he
lacks capacity.
•Balance of probabilities – it is more likely than not that the
person lacks capacity.
•The evidence if often quite finely balanced and in such cases
the presumption may be decisive.

51. Assistance with Decision Making
• S1(3) A person is not to be treated as unable to
make a decision unless all practicable steps to help
him to do so have been taken without success
– What is practicable depends on the circumstances at the
time
– Urgent vs non-urgent
– Time and discussion of options with friends, family,
advocates

52. The section 3 Test
UNDERSTAND RETAIN USE/WEIGH COMMUNICATE

53. RELEVANT INFORMATION – the decision
requires the person to consider relevant
information
THE PERSON IS UNABLE – to understand it, or
– to retain it, or – to use/weigh it, or to
communicate their decision
IMPAIRED OR DISTURBED MIND OR BRAIN –
the inability to understand, or retain, or
use/weigh, or communicate is because of an
impairment or disturbance of the mind or brain

54. Just cognition and capacity to
reason?
• No,
– may be able to understand relevant information, to
be able to retain it and intellectually able to
acknowledge significance, but
– due to overwhelming phobia, obsessive thoughts,
compulsive or abnormally impulsive behaviour or
some other disturbance, be unable to give it
weight

55. Unwise Decisions
• S1(4) – A person is not to be treated as unable to
make a decision merely because he makes unwise
decisions
• In other words
– A person is not to be treated as unable to make their own
decision merely because the decision they make or
propose to make is considered by some person or persons
to be unwise
• An unwise or irrational decision may raise doubts as
to capacity and so trigger assessment

57. Best Interests
• S1(5) An act done, or decision made, under this Act
for, or on behalf of a person who lacks capacity must
be done, or made, in his best interests
– Part of the old common law test
– Avoid analysis of best interest which disregards or
downplays P’s wishes, feelings, values and beliefs
– The law requires objective analysis of a subject – P, not an
object.
– The principle of beneficence which asserts an obligation
to help others to further their important and legitimate
interests, not one’s own

58. Least Restrictive Option
• S1(6) Before the act is done, or the decision is
made, regard must be had to whether the purpose
for which it is needed can be as effectively achieved
in a way that is less restrictive of the person’s rights
and freedom of action
– This is not a requirement to take “the least restrictive
option”
– Why and act or decision is now needed and the the
effectiveness of less restrictive approaches must be
considered – and documented.

59. ACTS IN CONNECTION WITH
CARE OR TREATMENT
• S5 provides that if a person (D) does an act in
connection with the care or treatment of P and
– Before doing the act has taken reasonable steps to
establish whether P lack capacity, and
– When doing the act reasonably believes
• That P lacks capacity in relation to the matter, and
• It will be in P’s best interest for the act to be done
• D does not incur any liability in relation to the act that
he would not have incurred if P
– Had had capacity to consent in relation to the matter, and
– Had consented to D’s act

60. • S6 sets out limitations to s5 acts:
– S6(1) – application of s5 in respect of acts intended to
restrain P
• Reasonably believes it is necessary to prevent harm to P
• It is a proportionate response to
• The likelihood of P suffering harm, and
• The seriousness of the harm
– S6(4) D restrains P if he
• Uses, or threatens to use, force to secure the doing of an act which
P resists, or
• Restricts P’s liberty of movement, whether or not P resists

61. • S6(6) – S5 does not authorise D to do an act which conflicts
with a decision made, within the scope of his authority and in
accordance with MCA Part 1, by
– A donee with a lasting power of attorney granted by P, or
– A deputy appointed for P by the court
• S7 and 8 – permit the reimbursement of expenditure incurred
in the purchase of necessary goods and services for P and
involved in any s5 act respectively.

62. INDEPENDENT MENTAL CAPACITY
ADVOCATE SERVICE
• Ss 35 – 36
– Who are IMCAs?
• People approved by the LA to act on behalf of those
who lack capacity
• Independent people of integrity and good character with
appropriate experience and training
• NHS and LAs must take account of an IMCA’s views
when making decisions that affect people who lack
capacity

63. IMCA
– An IMCA must be appointed for a person lacking
capacity who has no close family member or
unpaid carer to support them if:
• A LA is deciding on the person’s long term living
arrangement in a hospital or care home (S39 MCA)
• In some cases where DOLs Safeguards are used under
Sch A1 (standard and urgent authorisations)

64. IMCA
– An IMCA will not be appointed where a person:
• has nominated someone to be consulted about matter
that affect them or has a close family member or an
unpaid carer who can support them in the decision
making process
• has made an LPA or EPA to deal with such decisions
(eg advance decision as to medical care)
• The CoP has appointed a deputy to deal with such
decisions

65. IMCA
– An IMCA may be appointed for a person lacking
capacity who has no close family member or
unpaid carer to support them, if
• A LA is reviewing or planning to review a person’s
accommodation
• If it would be of particular benefit to a person without
capacity when there is an allegation that they have
been abused

66. IMCA
• What does an IMCA do?
– Has the right to visit and privately consult with a person who
lacks capacity
– When appointed the IMCA should:
• Interview P
• Examine P’s records
• Gather relevant information about the decisions to be made
• Where appropriate, consult with the professionals providing care
and treatment to P
• Where appropriate, consult others who may be able to comment
on Ps wishes, feelings, beliefs and values

67. IMCA
• Once the IMCA has all this information, the next step
is to:
– Ascertain the support that P needs to participate in the decision
– Identify what P’s wishes, feelings, beliefs and values would be
likely to be if he had capacity to make the decision
– Identify what other courses of action are available
– If the decision relates to medical treatment, give an opinion
whether P would benefit from further medical opinion
– Take into account COPR, ensuring that the guiding principles
are followed, that the least restrictive options have been
considered and the best interests checklist complied with

68. IMCA
• After that:
– Prepare a report including conclusions on all these
matter and giving an opinion on how the relevant
decision should be made in P’s best interest
– If there is unresolvable disagreement amongst the
professionals as to P’s best interest or the IMCA
feels that his/her opinion has not been taken into
account
• May make a complaint to the LA
• Or refer the issue to CoP

70. IN THE CONTEXT OF THE
WORK OF LOCAL AUTHORITIES
AND PRIVATE REGISTERED
PROVIDERS

71. Care Planning
• Assume capacity
– Decision specific (may be able to make some decisions
and not others)
– Care providers must obtain consent to each element of a
care plan
– Ask: does P have the capacity to make the specific
decision at the time it needs to be made
– Asking this question protects the those providing care and
support from blanket assumptions of a lack of capacity
– Evidence consent or evidence why P was assessed as
lacking capacity to consent

72. • Assist in decision making
– Unlawful to say P lacks capacity of you have not tried to
support him in making a decision
– Convey information is a way that P can understand it it
– Do all that can reasonably be done to help P understand
the choices he has about his care and support
– In care and support plans and other reports look for:
• A description of any special communication needs
• How P is supported to understand and be involved in decisions

73. • The right to make unwise decisions
– Do not impose your values on the people for whom you
provide care and support
– Everyone has a right to pursue choices that others
consider unwise
• Eating unhealthy food
• Playing the lottery
• Extreme fishing with Robson Green
– What to look for:
• Information about what is important to P, their wishes and
preferences
• What P wants to achieve from his care and support
• Social history, key events and achievements
• Remember, assessment as to capacity is decision specific

74. • Act in P’s best interests
– Best Interest only applies if P is unable to make the
decision after being given support to do so
– Do not make a best interests decision until lack of capacity
is establish BoP
• To do so is unlawful and deprives P of his basic human rights to
freedom and autonomy
– Follow the best interests checklist in s4 MCA
– Do not confuse your “duty of care” with P’s “best interests”
– Demonstrate you “best interest” decision making
– What to look for:
• How P’s liberty and choices about care/support are promoted
• Information about P’s views and how he has been supported in
decisions

75. • Look for the least restrictive option
– Consider all options
• Then choose the one that meets the need and is least restrictive of
P’s rights and freedoms
• Challenge yourself to consider whether there is an alternative less
restrictive option which nonetheless meets the need identified
– What to look for/record
• Details of the options considered together with the associated risks
and benefits of each
• A clear explanation of why a particular option was decided upon
• When a review of restrictions (if any) will take place and how

76. A GENERAL FRAMEWORK
PERSONAL WELFARE DECISIONS
P is required to make a decision in connection with their care or
medical treatment
Someone is concerned whether P has capacity to make this
decision
P’s capacity is assessed – s3 Test
If it cannot be established – capacity is presumed. P makes
the decision
If lack of capacity is established on PoB – then (unless it can
be postponed) someone will have to make the decision for P

77. The “someone” makes the decision by applying the MCA
2005 – it sets out a framework for doing so by
considering:
1. When P had capacity did He make a valid advance
decision to refuse this particular treatment – if yes, in
general then this will apply to the decision
2. When P had capacity did he execute a valid LPA/EPA
which covers care or treatment decisions of this kind – if
yes, in general then this will apply to the decision
If there is no relevant advance decision/LPA/EPA, is it
necessary or appropriate to apply for a court order as to
whether care or treatment should be given?
If yes – apply to CoP

78. If No? Care or treatment can be given under MCA
2005 if s5 conditions are satisfied: a) Is this something
connected with P’s care or treatment?
b) Have reasonable steps been taken to establish
whether P has capacity to make this particular
decision at this particular time?
c) Does the person providing care/treatment
reasonably believe that P lacks capacity to decide?
d) Does the provider reasonably believe that it will be
in P’s best interests to receive this care/treatment or
act to be done in respect thereof?
e) If restrain is used doe the provider reasonably
believe that the care or treatment is necessary and
does more good that the restraint cause?

79. RESOURCES
• Social Care Institute for Excellence –
www.scie.org.uk
– Report 70 – The Mental Capacity Act (MCA) and Care
Planning (Oct 2014)
– Guide 42 – Good practice guidance on accessing the
Court of Protection
– eLearning resource for all areas – helping with decision
making, best Interest decisions, assessing capacity,
handling disagreements, DOLs etc

80. RESOURCES
• Empowerment Matters -
www.empowermentmatters.co.uk
– Information Sheets – No 1 – Best Interests Checklist
– Making Financial Decisions – Guidance for Assessing,
Supporting and Empowering Specific Decision Making
(commissioned by the Department of Health)

81. RESOURCES
• Court of Protection Handbook, LAG supported and
supplemented by –
www.courtofprotectionhandbook.com
• Codes of Practice -
www.judiciary.gov.uk/downloads/protecting-the-vulnerable/
mca/mca-code-practice-0509.pdf
• PDs - www.judiciary.gov.uk/publications-and-reports/
practice-directions/cop-practice-directions

82. RESOURCES
• Committal –
www.judiciary.gov.uk/publications-and-reports/
guidance/2013/family-division-practice-direction-
committal-contempt-of-court-june-
2013
• Transparency in CoP –
www.judiciary.gov.uk/publications-and-reports/
guidance/2014/index

83. RESOURCES
• MIND – www.mind.org.uk/information-support/
legal-rights/mental-capacity-act-2005/

84. ALISON GRAHAM-WELLS
grahamwells@exchangechambers.co.uk
0161 833 2722
201 Deansgate
Manchester M3 3NW