Legal Capacity: Recent Experience in England and Wales

Genevra Richardson

King’s College London

MCA/MHA interface in E and W Two pieces of legislation: Mental Health Act and

Mental Capacity Act Different principles; different jobs Overlapping populations: people who lack

capacity as defined by law and require treatment for mental disorder

Either statute could be used even where detention is said to be necessary in the person’s best interests

MCA is the more relevant for today

Structure of the MCA Covers the ground previously covered by common

law and parts of MHA It authorises certain people to take certain decisions

on behalf of people who lack the mental capacity necessary at law to take those decisions themselves s 5: general authority s 9(1): lasting powers of attorney s 16(2): court deputies s 16(1): court of protection

Deprivation of Liberty Article 5(1) ECHR applies: Every one has the

right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law

Following a decision in the ECrtHR provisions introduced to provide for the lawful deprivation of liberty under MCA

Benign Legislation? In contrast to MHA Contains important principles including

presumption of capacity, best interests, least restrictive alternative

Best interests: no definition but process set out in detail. Some emphasis on wishes and feelings and participation

Duty to appoint independent mental capacity advocates.

Some Reservations Knowledge and implementation in practice Adequacy of safeguards: treatment and

deprivation of liberty Courts have emphasised ultimate priority of

objective best interests over present wishes and feelings (Re M [2009] EWHC 2525)

Problems at the interface with MHA

Role of the MHA Provides framework for

involuntary/compulsory hospitalisation and treatment of people with a mental disorder of the necessary severity

No principles in the Act Level of decision making capability not

formally relevant

MHA/MCA relationship MHA establishes a framework for the

provision of treatment, on an involuntary basis if necessary, to those suffering from mental disorder to the specified degree

MCA provides a more general framework through which decisions, including those relating to medical treatment, may be taken on behalf of adults who lack decision-making capacity

The Consequence Either MCA or MHA could apply to adults

with mental disorders who lack capacity even when the treatment they require includes the deprivation of liberty

At the point of Mental Health Act assessment clinicians will have to make a conscious choice between the two frameworks. (MHA Code of Practice 2008, p28-31)

Difficult decisions Extensive guidance and case law now exists

but hard decisions remain Does the person retain mental capacity at law? Is any restriction of liberty required? Does it

amount to a deprivation? (Cheshire West and Chester Council v P [2011] EWCA Civ 1257)

Is the person objecting? Is this appropriate in the determination of

important rights?

Generic Legislation? The fusion solution: one Act to cover all

people who lack capacity at law Removes discrimination towards people with

mental disorder But problems remain:

with the definition of mental capacity at law (problems of both practice and principle)

the definition of deprivation of liberty

The UN CRPD Is radical reconsideration required following the

Convention? What are the implications of art 12(2)?

“States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”

Is mental capacity no longer allowed as a requirement of legal capacity (the recognition that decisions and actions have effect at law)?

Supported decision making A universal capacity model suggests not: supported

replaces substitute decision making. Decisions are to be made by the person not for her

12(3) “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”

But art 12(4) which requires all such measures to provide safeguards is open to wide interpretation

Article 12 (4) “States Parties shall ensure that all measures that relate to

the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.”

The CRPD and the MCA If art 2(4) permits eventual resort to substitute

decision making properly restricted and safeguarded could an MCA structure ever be made compliant?

More emphasis on support, participation, advance decisions and training to restrict resort to substitute decision making

Revision of objective best interests

A Way Forward? Separate “mental health” and “capacity”

frameworks inevitably lead to problems at the interface

But improvements to the “capacity” branch can influence the “mental health”

A “capacity” framework entrenching supported decision making could achieve a true paradigm shift in culture