The law about a person’s capacity to make decisions is of at least threefold importance in relation to this book. First, when local social services authorities and NHS bodies are assessing, providing services for and treating people who do or may lack capacity, it is essential that they understand the law about capacity. Otherwise, their interventions run the risk of being unlawful and of not being in a person’s best interests. Second, more specifically, the law about capacity relates closely to adult protection and safeguarding adults, since an adult lacking capacity to take important decisions is by definition more vulnerable (see Chapter 21). Third, the numbers of people who may lack capacity are increasing, for example, with the increase in prevalence of dementia.
During 2007, the Mental Capacity Act 2005 came into force in England and Wales. First, it consolidated the ‘common law’ legal rules about mental capacity that the law courts had developed over some 20 years. That is, in the absence of adequate legislation, the courts had increasingly been forced to decide about health and welfare interventions, in the case of people lacking capacity to decide for themselves. Second, the Act also introduced new legal rules.
In summary, the 2007 Act sets out a number of key principles that run throughout the Act and which should govern decisions and interventions in relation to people lacking capacity. It defines lack of capacity, and states that interventions have to be in people’s ‘best interests’. It provides legal protection for people who provide care and treatment for a person lacking capacity, so long as they have done so reasonably and in good faith. At the same time the Act prohibits excessive restraint of a person. It contains separate rules about going beyond restraint and instead depriving a person, lacking capacity, of his or her liberty.
A major change introduced by the Act is to replace enduring powers of attorney with lasting powers of attorney. This means that a donor, with capacity, can create such a power authorising the attorney in the future to take not only financial decisions but also health and welfare decisions for the donor, when the latter loses capacity to take those decisions. Parallel with this change in the law, the Act creates a new Court of Protection which can intervene not only in financial, but also in health and welfare, matters. This contrasts with the previous position, in which the Court of Protection (under the Mental Health Act 1983) was limited to interventions relating to finance, business and property.
The Act clarifies the law about advance decisions or ‘living wills’ as they are sometimes called. They involve a person with capacity, stipulating in advance their refusal of specified medical treatment, in case at the relevant time he or she lacks the capacity to do so directly.
The Act also underpins a statutory independent mental capacity advocacy (IMCA) service, which means that in certain circumstances local authorities and NHS bodies have an obligation to instruct an advocate before a decision is made.
A new offence of wilful neglect or ill-treatment of a person lacking capacity, with a maximum sentence of five years in prison, is contained in the Act.
Overall, the Act is intended to empower people by, for example, making sure that they are not too readily deemed to lack capacity to make decisions; at the same time it serves a protective function also. It thus serves a dual purpose.
A helpful way of understanding the ‘substituted decision-making’ set out by the Act, in relation to the care and treatment of a person lacking capacity, is to consider it in terms of a hierarchy. First, and outweighing the others when it comes to a refusal of medical treatment, are advance decisions (sometimes known as living wills). Second, come the powers exercised by the donee of a lasting power of attorney (given to the donee when the donor still had capacity). Third, the Court of Protection may make orders in relation to care and treatment. Fourth, the Court may appoint a deputy to make ongoing decisions. Lastly, s.5 of the 2005 Act provides protection for those providing care or treatment less formally – but this does not extend to overriding an advance decision, or a decision made by a person with lasting power of attorney or by a deputy (Bowen 2007, p.172).
Most of the Mental Capacity Act 2005 came into force in October 2007. Prior to the passing of this Act, the position as regards decision-making capacity was as follows.
As far as finance-type matters were concerned, a person as donor could make an enduring power of attorney, authorising the attorney (typically a family member) to take finance, business and property decisions on behalf of the donor, in case of the donor losing capacity to manage such affairs. This was under the Enduring Powers of Attorney Act 1985. In the absence of such a power of attorney, the Court of Protection could intervene in such matters under the Mental Health Act 1983, making orders or appointing a receiver for ongoing management of a person’s affairs. If the only finance to be dealt with was in the form of social security benefits, then an appointee could be appointed by the Benefits Agency. The law remains the same in this latter respect.
If health or welfare decisions had to be made, the law did not allow anybody directly to consent or make decisions on behalf of the person lacking capacity. However, it did allow ‘best interests’ and ‘necessity’ (making lawful what would otherwise be unlawful) interventions. These could range from deciding about what somebody should eat, what clothes they should wear and when they should get washed – to major medical interventions or decisions about where somebody should live. Where significant issues were in question, resort had to be made to the Family Division of the High Court in case of uncertainty, of dispute or of some very serious interventions. The court would exercise its ‘inherent jurisdiction’ by making a declaration or order as to what should happen. Sometimes the court was called on to decide whether a person himself or herself had capacity to decide the issue in question. Through this legal case law, the court developed a set of rules about decision-making capacity. Many of these rules have found their way into the Mental Capacity Act 2005, and so past case law remains highly relevant to the new Act.
Central government had proceeded slowly and cautiously toward the new Act. During the 1990s, the Law Commission carried out a great deal of work on the topic and produced a number of reports, culminating in a final report entitled Mental incapacity law (Law Commission 1995). This was then followed by a government consultation paper, Who decides? (Lord Chancellor’s Department 1997), and a report, Making decisions (Lord Chancellor 1999). In 2003 the government published a draft Mental Incapacity Bill, and followed it up with a Mental Capacity Bill in 2004. The Act was passed in 2005 and brought into force mainly toward the end of 2007, together with a substantial and helpful statutory Code of Practice.
Some years previously, the Scottish Parliament had enacted and implemented its own legislation, the Adults with Incapacity (Scotland) Act 2000.
20.2 PRINCIPLES RUNNING THROUGH THE MENTAL CAPACITY ACT 2005
Section 1 of the Act sets out five core principles which apply to the whole Act.
20.2.1 ASSUMPTION OF CAPACITY
First, a person is assumed to have capacity to take a decision unless it is established otherwise (Mental Capacity Act 2005, s.1). The effect of this principle is that whoever is seeking to show lack of capacity has to work all the harder in doing so. In case of doubt, one would therefore lean to capacity rather than incapacity. Prior to the Act, this approach was anyway to be found in the common law and the exercise of the High Court’s inherent jurisdiction.
The principle in common law has also been that, once capacity has been shown to have been lost, there is a presumption of continuance of that loss. However, the Court of Appeal rejected this approach in the case, for example, of head injury, from which there might be recovery. One reason for taking this approach is because of the drastic consequences of being judged to lack capacity: a person is deprived of important civil rights (Masterman-Lister v Bruttori). In another case, in which a man with learning disabilities clearly lacked the capacity to consent to marriage, the court noted that the possibility of future improvement in his capacity had to be borne in mind (X City Council v MB).
20.2.2 TAKING PRACTICABLE STEPS TO HELP A PERSON DECIDE
All practicable steps should be taken to help a person take the decision (s.1).
Such practicable steps could be various. The Code of Practice refers to the importance of relevant information, including all relevant information, avoidance of excessive detail, outlining risks and benefits, explanation of the effects of the decision, balanced presentation and consideration of obtaining specialist advice. In terms of communication, ‘all possible and appropriate means of communication should be tried’. This may include finding out the best means of communication, using simple language, pictures, objects, illustrations, picture boards, hearing interpreter, mechanical or electronic communication aids, interpreting behaviour which is indicative of feelings, speaking at the right volume and speed with appropriate sentence structure and vocabulary, breaking down information into smaller bits, allowing the person time to understand each bit of information, repeating information, getting help from people the person trusts, awareness of cultural, ethical or religious factors, using a professional language interpreter, using an advocate.
Location might be decisive, for instance, a quiet one free of background noise or other distractions, and one where privacy and dignity is respected; taking a person to the relevant location (such as a hospital) may assist the person to understand what is in issue and make the decision. Likewise timing may be decisive; a person may be more alert in the morning, less alert immediately after taking drowsiness-inducing medication, become tired or confused if asked to decide too much in one go – or simply delaying the decision may be helpful so that more steps can be taken to assist the person take the decision. Support from other people may of benefit; the presence of a relative or a friend may (or may not be) reassuring and reduce anxiety (Lord Chancellor 2007, paras 3.9-3.15).
20.2.3 UNWISE DECISIONS DO NOT NECESSARILY MEAN INCAPACITY
The fact that a person with a disorder or disability of mind takes what is considered to be an unwise decision does not necessarily mean that he or she lacks capacity (s.1).
This is a key principle. It recognises the fact that everybody makes unwise decisions. As the courts have put it: ‘It is not the task of the courts to prevent those who have the mental capacity to make rational decisions from making decisions which others may regard as rash or irresponsible’ (Masterman-Lister v Brutton). After all, many people ‘make rash and irresponsible decisions, but are of full capacity’. However, this does not mean that vulnerability to exploitation is not relevant to the question of capacity. The question is not whether the person is making a rational decision but whether he or she has the capacity to make a rational decision (Lindsay v Wood). Nonetheless, the courts have stated that outcomes can often ‘cast a flood of light on capacity’, and are likely to be important, though not conclusive, indicators (Masterman-Lister v Brutton).
So, when a woman person with learning disabilities wished to marry a 37-year-old man with a substantial history of sexually violent crimes, the court was called on to consider whether or not she had capacity to marry. It did not simply assume that she lacked capacity, nor was it minded to set too high a threshold of capacity to marry:
Marriage. The question of whether E has capacity to marry is quite distinct from the question of whether E is wise to marry; either wise to marry at all, or wise to marry X rather than Y, or wise to marry S. In relation to her marriage the only question for the court is whether E has capacity to marry. The court has no jurisdiction to consider whether it is in E’s best interests to marry or to marry S. It is not concerned with the wisdom of her marriage in general or her marriage to S in particular (Sheffield CC v E).
Legal cases involving the question of unwise decisions are discussed further below (see 20.4.2).
20.2.4 INTERVENTIONS MUST BE IN A PERSON’S BEST INTERESTS
20.2.5 LEAST RESTRICTIVE INTERVENTION
Before an act is done for a person lacking capacity, regard must be had to whether the purpose of the act can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action (s.1).
Intervention in the case of a person lacking capacity is a major intrusion because, by definition, it is without the person’s consent. Therefore the Act makes clear that it should be no more restrictive than necessary. This principle could apply to a range of situations, including restraint, restriction of liberty, restrictive daily routines (e.g. how washing, dressing, mealtimes, getting up and going to bed are handled and organised).
Nor is it necessarily about minimising risk at all costs. As the court put it in one case involving a highly vulnerable woman, ‘what good is it making someone safer if it merely makes them miserable?’ This was where allowing the continuation of a sexual relationship (to which she could consent) with her longstanding boyfriend, would be a clear benefit to her – but also carry a number of risks in relation to her mental health and to other matters on which she lacked the capacity to decide (Local Authority X v MM).
20.3 LACK OF CAPACITY
Section 2 deals with lack of capacity:
•a person lacks capacity if, at the material time, he or she is unable to take a decision in relation to a particular matter, because of impairment of, or disturbance in the functioning of, the mind or brain
•it doesn’t matter whether the lack of capacity is permanent or temporary
•lack of capacity cannot be established merely be reference to age, appearance, condition or aspect of behaviour
•capacity is to be decided on the balance of probabilities
•the Act does not apply in the case of somebody under 16, but the Court of Protection may make decisions or appoint a deputy in relation to the property and affairs of a person under 16 (s.2).
The test for capacity is essentially twofold. First, whether there is an impairment or disturbance in the functioning of the mind or brain; and, second, whether is there an inability to take a particular decision at a particular time.
The Code of Practice states that examples of impairment or disturbance in the functioning of the mind or brain might include:
•conditions associated with some types of mental illness
•significant learning disabilities
•physical or mental conditions causing confusion, drowsiness or loss of consciousness
•symptoms of alcohol or drug abuse (Lord Chancellor 2007, para 4.12).
20.3.1 CAPACITY: ISSUE AND TIME SPECIFIC
Section 2 makes clear that capacity is both issue and time specific, a principle emphasised by the courts in the past. Capacity is not all or nothing. It generally relates to the taking of a particular (type of) decision (Masterman-Lister v Brutton).
For instance, a person might have the capacity to decide what to eat for breakfast, but not where he or she should live. Likewise, a person may lack capacity to take a decision one week, only to regain it the next, once a chest infection or urinary infection has cleared up. Nonetheless, in case of marriage, the question is not whether the person has the capacity to marry one person rather than another, but rather whether he or she has the capacity to marry at all (Sheffield CC v E). The same principle applies to capacity to consent to sexual relations; it cannot depend on the particular partner. Thus it is issue, not person or partner, specific (Local Author- ity X v MM).
Things may become complicated. In one case, in which a local authority was attempting to protect a woman with learning disabilities, she was judged to lack the capacity to decide where to live, with whom (generally) to have contact, to marry or to litigate. However, she was deemed to have the capacity to consent to sexual relations. The local authority was faced with the task of working out a care plan which balanced these factors (Local Authority X v MM).
20.4 INABILITY TO TAKE A DECISION
The second part of the test for incapacity is elaborated upon in section 3 of the 2005 Act which states that:
•a person is unable to take a decision if he or she is unable to understand the relevant information, or to retain it, or to use or weigh it as part of the decision-making process, or to communicate it
•however, the person is not to be regarded as unable to take the decisions if he or she can understand an explanation in a way appropriate to his or her circumstances (e.g. using simple language, visual aids or any other means)
•if the person can retain the information relevant to the decision for a short time only, this does not necessarily mean the person cannot make decision
•information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision (s.3).
The test of capacity embodied in s.3 of the Mental Capacity Act 2007 equates with what has been called the functional approach, as opposed to a status or outcome approach, to capacity (Law Commission 1995, para 3.3). Its inclusion in the Act derives from past judge-made law, in the exercise of the inherent jurisdiction of the High Court in the absence of applicable legislation. It contrasts with what may be called a status or outcome approach. The following example was a landmark case, illustrating the courts’ rejection of the status and outcome, in favour of the functional, approach. The outcome of the person’s decision was that he might well die; the status issue was that he was a mental health patient in a special hospital. However, neither fact meant that he necessarily lacked the requisite decision-making capacity:
Amputation of gangrenous leg. A patient detained in a special secure hospital suffered from chronic paranoid schizophrenia. He was found to be suffering from an ulcerated, gangrenous foot and transferred to a general hospital, where the surgeon recommended amputation. The patient refused but agreed to conservative treatment; and sought an injunction to stop amputation unless he consented in writing. The court held that his schizophrenia did not mean that he could not understand the nature, purpose and effects of the treatment. He understood the relevant information, believed it and arrived at a clear choice. The court granted the injunction (Re C (Adult: refusal of treatment)).
20.4.1. EXISTING COMMON LAW TESTS OF CAPACITY
Tests of capacity for some particular decisions have been formulated in the common law by the courts – including for medical treatment, residence, contact, litigation, gifts, wills, marriage, sexual relations.
It is expected that the courts will consider these rules in the light of the general test of capacity in the 2005 Act. However, these particular rules remain applicable. The Code of Practice states that the judges will adopt the 2005 Act test ‘if they think it is appropriate’ (para 4.33). The courts have stated that this does not mean judges can simply disregard the 2005 Act test but that in cases, other than in the Court of Protection – for example, cases about capacity to make wills, gifts, to litigate, to marry – the court can ‘adopt the new definition if it is appropriate – appropriate, that is, having regard to the existing principles of the common law’ (Local Authority X v MM).
In the case of capacity to litigate, however, the relevant civil procedure rules have adopted the definition of capacity contained in the 2005 Act – thus, the latter does directly apply, outside of the Court of Protection, to the question of capacity to litigate (Saulle v Novet).
20.4.2 ASCERTAINING INABILITY TO TAKE A DECISION
Ultimately the question of capacity is a legal, not a medical, one. Indeed, the Act and Code of Practice envisage that all manner of person may be taking this decision, because the onus lies on the person – who may be a professional, but who may alternatively be a family member, for example – proposing to make a decision in somebody else’s best interests.
The Code of Practice states that the person who assesses capacity will usually be the person directly concerned with the decision that has to be made. This means, for ‘most day-to-day’ decisions, the immediate carer. For acts of care or treatment, the assessor must, under s.5 of the Act, have a reasonable belief that the person lacks capacity. More complex decisions are likely to need more formal assessments, but the final decision is to be made by the person intending to make the intervention in terms of care or treatment. Of course professionals such as doctors or solicitors will have to assess capacity in relation to proposed medical treatment or legal transactions respectively.
The Code goes on to state that carers, including family carers, do not have to be expert assessors, but must be able to explain the reasonable steps they have taken to ascertain the lack of capacity. Thus reasonable steps will depend on individual circumstances and the urgency of the decision; professionals would normally be expected to undertake a fuller assessment than family members without formal qualifications. However, a professional opinion may be required when a complex or major decision has to be made. This might be from a general practitioner or, for example and depending on the condition or disorder, consultant psychiatrist, psychologist or speech and language therapist (Lord Chancellor 2007, paras 4.38-4.51).
Yet medical evidence is by no means all. For instance, a family member or professional (such as a social worker) with close knowledge of and contact with a person may be better positioned to make a judgement about capacity, than a medical doctor coming to the situation ‘cold’. In the same vein, in coming to the conclusion in one case that a person did not lack capacity to manage his affairs, the court took particular account of the person’s diary entries made over a period of many years. The medical experts giving evidence in the case had failed to reach a consensus, and so the judge had to look particularly hard at non-medical evidence, including the man’s diaries (Masterman-Lister v Brutton). In another case, the evidence to the court was from many quarters:
Evidence about a woman’s capacity. In a case concerning exploitation by carers of an elderly woman (now dead), and whether the transfer of her home to the carers should be set aside in civil law, the court heard evidence from a whole range of people including three general practitioners, a hospital senior house officer, a pathologist and another hospital consultant who had examined histological slides of the woman’s brain, a chiropodist, friends, neighbours, a social worker, a retired Methodist minister, a solicitors’ clerk, and a borough council emergency contact service supervisor (Special Trustees for Great Ormond Street Hospital v Rushin).
In practice, factors to be considered in a capacity assessment (by a medical doctor) might include appearance, speech, mood, thinking processes, perceptual disorders, delusional ideas, cognitive functions, orientation, memory, insight and pre-morbid personality. Apparent incapacity may simply be very temporary owing to a chest infection or urinary infection that can rapidly be cleared up. It might well be better to visit a person in his or her own home, choosing the time carefully so that the person is not too tired or otherwise distracted; a couple of visits may be necessary. Even then, the doctor may be unable to decide and refer the matter to the courts (Singh 2002).
188.8.131.52 Refusal of assessment of capacity
Some people might refuse or object to an assessment of mental capacity. The Code of Practice states that nobody ‘can be forced to undergo an assessment of capacity. If someone refuses to open the door to their home, it cannot be forced’. It points out that that if there were serious concerns about a person’s mental health, it may be possible to obtain a warrant and force entry under s.135 of the Mental Health Act 1983. However, the Code underlines that ‘simply refusing an assessment of capacity is in no way sufficient grounds for an assessment’ under the 1983 Act (Lord Chancellor 2007, para 4.59).
20.5 BEST INTERESTS
If an act is done or decision taken for a person lacking capacity, it must be in that person’s bests interests (s.4):
•(best interests) any act done or decision taken, for or on behalf of a person lacking capacity, must be in that person’s best interests
•(avoiding unjustified assumptions) in determining best interests, the person making the determination must not make it merely on the basis of the person’s age or appearance or a condition or aspect of behaviour, which might lead others to make unjustified assumptions about what might be in his best interests
•(considerations) best interests involve the decision-maker:
(regaining of capacity) considering whether it is likely that the person will at some time have capacity and, if so, when that is likely to be
(participation of person) permitting and encouraging the person to participate as fully as possible in the decision and any decision affecting him
(not desiring to bring about death) where life sustaining treatment is in issue, the decision-maker must not be motivated by a desire to bring about the person’s death
(past and present wishes etc.) considering, if reasonably ascertainable, the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by the person when he or she still had capacity), beliefs and values, other factors
(consulting others) taking into account, where consultation is appropriate and practicable, the views of anyone named person by the person, any person caring for the person or interested in the person’s welfare, any donee of a lasting power of attorney, any Court of Protection appointed deputy.
•(reasonable belief) this section of the Act is complied with if the person doing the act or making the decision reasonably believes that the act or decision is in the best of the interests of the person concerned (s.4).
There is no indication in the Act as to which, if any, of these factors should take precedence in the reaching of a decision about best interests. The Code of Practice states that, for example, that a person’s wishes and feelings, values and beliefs ‘will not necessarily be the deciding factor in working out their best interests’. Yet the Code notes the legal requirement to pay special attention to any written statements the person may have made before losing capacity (Lord Chancellor 2007, para 5.38-5.42). The courts have stated in this respect, that the ‘further capacity is reduced, the lighter autonomy weighs’ (Re C (Adult: refusal of treatment). So, conversely:
The nearer to capacity, so greater weight on wishes in determining best interests. ‘The nearer to the borderline the particular adult, even if she falls on the wrong side of the line, the more weight must in principle be attached to her wishes and feelings, because the greater distress, the humiliation and indeed it may even be the anger she is likely to feel the better she is able to appreciate that others are taking on her behalf decisions which vitally affect her – matters, it may be, as here [a personal, sexual relationship], of an intensely private and personal nature’ (Local Authority X v MM).
The person making the decision ultimately has to decide about the best interests, after applying the above test. It may not be plain sailing. For instance, consulting with relatives may bring about anything but a consensus:
Family pressure. A complaint to the local ombudsman concerned a woman with dementia and a family dispute amongst her three children. Unhappy with the care their mother was receiving at a home within the Doncaster area, the brother and one sister suggested their mother move down to a residential home in the south-west of England. The second sister objected, but the council agreed to fund the placement.
The following year, the second sister contacted the council and alleged that the first sister was not visiting frequently and that her mother was unhappy. The council agreed to arrange for the mother’s return to a council-owned home in Doncaster. It was maladministration to take this decision without the reassessment which was ‘clearly desirable and mandated by the Council’s own policy’ – and without at least some attempt at verifying the sister’s claims. The second sister collected her mother from the home in the south-west without explaining her intention of removing her permanently, but the council did not inform the brother and first sister. This was maladministration also (Doncaster MBC 1997).
Although it is the decision-maker who has to decide about best interests, nonetheless those best interests are not confined to issues within the expertise of that decision-maker. For instance, a decision about a medical intervention would encompass not just medical but also emotional and all other welfare issues. Furthermore, deciding about a person’s best interests is not just about identifying a range of acceptable options, but instead is about identifying the ‘best’, a superlative term. This does not therefore equate with the common law duty of care owed by professionals, which is at least to adopt a reasonable course of action, but not necessarily the best (SL v SL). The courts have also made clear that the best interests in issue are those of the person lacking capacity – even if, for example, the decision in question affects the life or death of a close family member (Re Y (Adult Patient) (Transplant: Bone Marrow)).
Over a number of years, the courts have been increasingly called on to make important welfare decisions about best interests – for example, about whether a person should receive medical intervention (e.g. sterilisation of a woman with learning disabilities for non- therapeutic reasons), where people with learning disabilities should live (Newham LBC v BS), whether they had capacity to marry or have sexual relations (Sheffield CC v E), or whether elderly people with dementia should remain at home cared for by a spouse or be admitted to hospital or care home (B Borough Council v Mrs S).