COURT OF PROTECTION
Some individuals may lack the capacity to make decisions about important aspects of their live as a result of a mental impairment. This can apply to people with learning disabilities, autistic spectrum conditions, acquired brain injuries, mental illnesses or other neurological or physical health problems. Other individuals, whilst cognitively able to make decisions, are so vulnerable to influence or pressure from other people that in practice they cannot exercise their capacity.
Ben Hoare Bell has particular expertise in representing those who lack capacity in Court of Protection proceedings and in advising and representing the carers and families of individuals in respect of whom Court of Protection proceedings or local authority safeguarding processes are in place.
- What is meant by “capacity”?
- What is meant by “best interests”?
- Court of Protection personal welfare proceedings
- Safeguarding vulnerable adults
- Deprivation of Liberty
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WHAT IS MEANT BY “CAPACITY”?
The law relating to mental capacity is contained in the Mental Capacity Act 2005.
Individuals are presumed to have capacity unless there is proof that they do not. The fact that a person makes unwise decisions is not enough to prove that they lack capacity.
Capacity is “issue-specific” and therefore an individual may have capacity to make some decisions but not others. In order to establish that a person lacks capacity to make a decision it must be shown that the person has an impairment or disturbance of their mind, as a result off which he or she is unable to understand, retain or weigh up information which is relevant to the decision in question or that the person is unable to communicate that decision. Having capacity to make a decision therefore involves much more than being able to express a wish.
In cases where there is a dispute, assessments of capacity are often carried out by psychiatrists, psychologists or social workers with specialist training.
WHAT IS MEANT BY “BEST INTERESTS”?
The term “best interests” is not defined in the Mental Capacity Act but the Act sets out a process for determining what is in someone’s best interests. This involves taking into account a number of factors, including the current wishes of the person who lacks capacity, and the wishes and values that they had before they lost capacity. The views of family members, carers and professionals with relevant specialist knowledge are also taken into account.
COURT OF PROTECTION PERSONAL WELFARE PROCEEDINGS
The Court of Protection has jurisdiction to resolve disputes about, and make decisions on behalf of, those who lack the mental capacity to make those decisions themselves. Sometimes fundamental issues are at stake, for example where a person should live, what care or treatment they should receive and with whom they should have contact.
Where there is a dispute about a significant health or welfare issue in relation to an adult who is believed to lack capacity to make the decision him/herself, a local authority, an NHS Trust or any other interested person may apply to the Court of Protection asking the court to decide whether the person concerned does in fact lack capacity and, if they do, what decisions should be made in that person’s best interests.
Our Health and Social Care Department is often asked to advise and represent family members who have been made party to Court of Protection proceedings issued by local authorities or NHS Trusts. Immediate family members usually have a right to be involved as parties to Court of Protection proceedings.
We are regularly asked by the Official Solicitor to act as solicitors for individuals who lack capacity in Court of Protection proceedings.
SAFEGUARDING VULNERABLE ADULTS
Local authority social services departments use safeguarding adults procedures (set out in the Care Act 2014) where they believe that an individual who is vulnerable may be subject to exploitation, neglect (including self-neglect) or abuse (physical, sexual, emotional or financial). In these circumstances it is the duty of the local authority to carry out an investigation and, where necessary, to make a safeguarding plan. In certain circumstances safeguarding adult procedures may lead to a decision that proceedings should be started in the Court of Protection or referred to the High Court to exercise its inherent jurisdiction.
Safeguarding vulnerable adult procedures can be upsetting and difficult to understand for all those involved including the vulnerable adult him/herself, family members and anyone who is considered may be harming or neglecting the vulnerable adult.
Ben Hoare Bell has considerable experience in supporting vulnerable adults, as well as family members, through the safeguarding vulnerable adults procedures, advising clients of the implications of the process and supporting them at relevant meetings.
We can also assist in providing advice or representation where the Office of the Public Guardian is investigating alleged misuse of a Lasting Power of Attorney or a Deputyship.
DEPRIVATION OF LIBERTY
The concept of “deprivation of liberty” comes from the European Convention on Human Rights, imported into UK law by the Human Rights Act 1998. Article 5 of the Convention prohibits the state from depriving an individual of his or her liberty without a due legal process which enables the individual to challenge the deprivation of liberty. As a result the Mental Capacity Act 2005 contains procedures and safeguards to be applied where individuals may be being deprived of their liberty, for example in a care home or hospital.
Some people are considered to have their liberty “restricted” but are not considered to be deprived of their liberty. Those people are not subject to the safeguards contained in the Mental Capacity Act. The distinction between a deprivation and a restriction is therefore crucial and has been the subject of many court decisions. As a result of the decision of the Supreme Court in the Cheshire West case most people who lack capacity to take decisions about their residence and care, who are living in residential care or supported living arrangements (and some people living in their own or their family’s home) meet the threshold for “deprivation of liberty”.
The Mental Capacity Act contains a procedure for local authorities or the NHS to give an “authorisation” for a deprivation of liberty of those placed in residential care or hospital, as well as a mechanism for the individual or someone on their behalf to challenge that authorisation. The deprivation of liberty of those living in supported living arrangements or in their own or their family’s home can only be authorised by the Court of Protection. This system is due to be reformed, probably from early 2017.
WILL I HAVE TO PAY FOR LEGAL ADVICE AND REPRESENTATION?
Legal Aid is available for these types of work, usually subject to meeting financial criteria. Legal Aid is available to fund challenges to authorisations depriving the individual of their liberty in residential care or hospital irrespective of the individual’s financial circumstances. If you think you may be eligible for legal aid we can take some financial details from you during an initial telephone call or meeting and generally we will be able to give you an indication as to whether you qualify for legal aid at that point. The financial test involves an assessment of your (and where relevant your family’s) income and capital. You can check whether you are eligible for legal aid by going to this page of the LAA’s website.
If you are not eligible for legal aid we can discuss with you the likely cost of you paying privately for the work we do for you. Depending on the nature of the work, it will often be possible for us to work on the basis of a fixed fee or on the basis that we will limit our costs to an agreed sum at each stage of your case. Our costs may vary depending on the level of experience of the person dealing with your case.