“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
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.
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 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 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.
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.
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.
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.