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					Mental Capacity and Human
          Rights

            12th January 2012


           DZN/LATA - 0.5 Hour CPD


          Craig Ward Author and
                 Solicitor
         Craig Ward,
Author    Solicitor
Lasting Powers of Attorney:
A Practical Guide (2nd Edition)
2011
The Law Society
Solicitor, Mediator and Trainer

Member of Solicitors For the
Elderly
and the British Psychological
Society
craig@lawtalks.co.uk07943
160955 (UK)
Mental Capacity
  Presumptions and Questions


Section 1(2) MCA
Sections 2 and 3 MCA
Confirming Mental Capacity
Re K Re F [1988] 1 All ER 358
Re W [2001] 2WLR
    Thorpe v Fellowes Solicitors LLP
         [2011] EWHC 61 (QB)
‘A solicitor is generally only required to make inquiries as
to a person’s capacity to contract if there are
circumstances such as to raise to doubt as to this in the
mind of a reasonably competent practitioner…’

‘I should add (since at least part of the Claimant's case
seemed to have suggested, at least implicitly, that this
was the case) that there is plainly no duty upon solicitors
in general to obtain medical evidence on every occasion
upon which they are instructed by an elderly client just in
case they lack capacity. Such a requirement would be
insulting and unnecessary.’
                 Mental capacity issues
Section 1(2) MCA 2005 - legal presumption of capacity

Tests - Legal tests based upon case law, functional approach, MHA 1983 def
of being a patient, specific to the matter and time

Assessments - different professionals may reach alternative conclusions

Expert evidence and family evidence can differ

Medical medical profession with diagnosis and prognosis more than severity
or implications of actions

Solicitors assessment - depends upon the nature of the action, need to
gather evidence from professionals and family then form a view on legal
capacity
            WHAT IS MEMORY
Encoding
Storage
Retrieval


Memory storage
STM: less than two minutes or seven items plus or
minus 2
LTM: of unlimited capacity storing over long periods
of time
        Assessing Mental Capacity
               Presumption of Capacity

  Two-stage test of Mental Capacity (S 2&3 MCA)

 S2 Is there an impairment of, or disturbance in, the
      functioning of the person’s mind or brain

S3 If so, is the impairment or disturbance sufficient to
cause the person to be unable to make that particular
               decision at the relevant time

If not should the decision be made by someone else
                 in their best interests
CONFIRMING MENTAL CAPACITY




Cognition - decision making
Orientation - time, place and person
Memory - STM/LTM different types of domains
COGNITIVE - DECISION MAKING

                What is an LPA
           Why are you (am I) here
           How did you (I) get here
   What is your name, date of birth, address
               How old are you
    What is today’s date, month, time of day
Who are these people you have brought with you
        How long have you known them
              Why are they here
    If I gave you £20.00 what could you buy
Restraint
             LAWFUL RESTRAINT


Restraint is where someone

(a) uses, or threatens to use, force to secure the doing of
    an act which P resists, or

(b) restricts P’s liberty of movement, whether or not P
resists.

                                         MCA 2005, s.6(4)
             LAWFUL RESTRAINT

Protection from liability MCA 2005, s.6(2) & (3)

(2) The first condition is that D reasonably believes that
it is necessary to do the act in order to prevent harm to
P.

(3) The second is that the act is a proportionate
response to-

(a) the likelihood of P's suffering harm, and
(b) the seriousness of that harm.
            LAWFUL RESTRAINT
MCA Code of Practice at 6.41

Any action intended to restrain a person who lacks
capacity will not attract protection from liability unless
the following two conditions are met;

the person taking action must reasonably believe that
restraint is necessary to prevent harm to the person
who lacks capacity, and

the amount or type of restraint used and the amount of
time it lasts must be a proportionate response to the
likelihood and seriousness of harm.
Deprivation of Liberty
    RESTRAINT INTO DEPRIVATION

DOLS CP 2.12 talks of restraint being“...frequent,
cumulative and ongoing...”Is this leading into
deprivation of liberty?

“An occasional restraint if continued over a period
of time, may culminate in deprivation, lawful or
otherwise. If amounts to more than just restraint
has it become deprivation.”
                    DEPRIVING ‘P’
DOLS 1.13 - P is deprived of liberty where

It is in their best interests

It is proportionate to the likelihood and seriousness of
harm

It is the least restrictive option

If an Lasting Power of Attorney (LPA), a Deputy valid
Advance Decision, these must be followed, even if
refusing that type of accommodation or treatment.
      Challenging Authorisation
Court of Protection involvement Post Deprivation

Applications by:

•LPA
•Deputy

Applications made before authorisation

Determine capacity issues
Certain acts lawful
Reviews
Other relevant issues
  Deciding on
Behalf of Others
Deciding on Behalf of Others

Lasting Powers of Attorney

Deputy’s and the Court of Protection

Appointeeships (Social Security (Claims
and Payments) Regulations 1987 SI
1987/1968)
     Private
International Law
             Private International Law
Hague Convention No. 35: International Protection of Adults (HC35)

HC35 - recognition of EU countries management of incapacity

HC35 incorporated under MCA 2005 Sched 3

s.63 MCA confirms this incorporation

BUT...

Signed but not Ratified in England & Wales

Ratified in Scotland - can provide HC35 Art 38 certificates

England & Wales cannot

LPA may be recognised but Court of Protection cannot provide HC35 Art 38
certificate

Re MN [2010] EWHC 1926 (Fam)
 Thank you

Any Questions

				
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