Mental Capacity Assessment & Law

“The advice was knowledgeable, reliable and professional. I always felt Cate had my mum’s interests at heart and was helping me do the best for her.”
‘Alex’, Mental Capacity Client

What Does Mental Capacity Mean?

Legal advice on the Mental Capacity Act 2005

Having mental capacity means being able to make your own decisions – big or small, simple or complex. The Mental Capacity Act 2005, which came into force in 2007, allows people to plan for delegated decision making across all areas of their lives should they later lose the capacity to manage their affairs. The Mental Capacity Act sets out who can take decisions on behalf of an adult who lacks capacity and in what circumstances they can act. Planning ahead and making a Lasting Power of Attorney is of course vital where possible, but there is much more to Mental Capacity law than this.

What is mental capacity?

Mental incapacity can arise from an accident, stroke, dementia, severe learning disability or severe mental health problem. This lack of capacity can be temporary or permanent. Unfortunately, mental capacity issues often arise during disputes with health or social services about how or where your relative should be cared for and what choices they can make for themselves about day-to-day matters. The law is complex and without legal advice, gaps can arise which can mean decisions are made by health and social services rather than by the individual or their family. We can help at all stages. Our mental capacity law team can advise and draw up a Lasting Power of Attorney before capacity becomes an issue yet can also help families if capacity is called into question and the family need to make decisions involving their relative’s care or finances. In the unhappy event that a dispute occurs with health or social services on issues surrounding their relative’s care, family members can rely on the team to make sense of the law surrounding capacity.

The role of mental capacity assessments

The starting point in assessing mental capacity is an assumption that any individual has mental capacity to make decisions for themselves, unless established otherwise. The person who may lack capacity must be supported to make as many decisions as they can for themselves.

A mental capacity assessment involves a relevant person carefully following the five main principles of the Mental Capacity Act and the Code of Practice to determine whether the adult who may lack capacity can make decisions themselves. Health or social services professionals or solicitors usually conduct formal assessments, although in practice informal assessments can be and are carried out by carers and family members on a day-to-day basis.

The Code of Practice offers comprehensive guidance on how to undertake a mental capacity assessment and what to consider when making decisions in someone else’s best interests. However, significant disagreement is common.

Best interest decisions

Best interest decisions are those made for someone who lacks the mental capacity to make that decision themselves. This can be a big or complex decision – such as where the person should be cared for – or a smaller decision such as whether they can give their grandchildren a small cash gift for Christmas and birthdays.

The Code of Practice gives a very helpful checklist to the decision maker, be they a relative/carer or a professional. At best interest meetings, best interest decision making can be a source of conflict between professionals, service users and their families. Huge differences of opinion can occur, and decisions often have to be taken at short notice or in an urgent health or safety context, for example when there is concern that a vulnerable adult has been or may be exploited in any way, including financial exploitation.

Problems can arise even where a Power of Attorney or Deputy Order is in place, particularly in relation to funding for care and financial decisions. Where no Power of Attorney is in place, decisions can be fraught with difficulty. A solicitor specialising in mental capacity law – and with a thorough knowledge of mental capacity assessments – can often resolve issues swiftly and with minimum upset.

What to do in a dispute over care for your relative

It is not uncommon to be told by health or social services that they think your relative lacks the mental capacity to make certain decisions (for example, whether to be cared for at home or in a nursing home) and for disputes to escalate because the statutory services and the family have very different opinions about mental capacity and what decision should be made. These disputes can sadly arise at times of crisis and can lead to a loss of trust between the family and the professionals involved in planning the individual’s care. A mental capacity law solicitor can guide you through the process to ease any difficulties you may be having.

Martin Searle Solicitors’ mental capacity law team can help by explaining:

• The principles of the Mental Capacity Act and best interest decision making so you can support your relative in getting the outcome you believe they would want and should have
• Your duties under the Mental Capacity Act as an attorney or deputy
• Your position to health or social services if they suggest you have not acted in your relative’s best interests and negotiating to find a compromise position that safeguards your relative while allowing them, for example, to return home from hospital rather than going in to care
• ‘Excluded decisions’ that you are not allowed to make for another person, for example, consenting to their marriage or civil partnership or voting for them in a general or local election

If you believe that health and social services are wrong to conclude that your relative lacks the mental capacity to make a particular and important decision which affects their life and freedom, we can advise you on how to challenge the mental capacity assessment.

Why Martin Searle Solicitors is well placed to help families

Martin Searle Solicitors’ social and community care law expert Cate Searle has many years’ experience simplifying the complexities of social care law for individual clients, their families and voluntary organisations. She also worked in social care practice before becoming a solicitor.

The mental capacity law solicitors at Martin Searle Solicitors can help you:

• Prepare for delegated decision making should you lose your mental capacity, temporarily or permanently
• Advise relatives on best interest decisions
• Resolve disputes with statutory services

How Martin Searle Solicitors can help statutory and voluntary organisations

For statutory and voluntary organisations we can:

• Deliver bespoke training on the Mental Capacity Act 2005 and mental capacity assessments
• Create tailor-made policy and procedures packages, including forms for staff to ensure compliance with guidance and best practice

Contact us today on 01273 609911, or email info@ms-solicitors.co.uk.