The Mental Capacity Act – reflections and recommendations 7 years on

The Mental Capacity Act (2005) (MCA) came into force in 2007. It is a forward thinking piece of legislation that looked to empower as far as possible people who lack mental capacity.

On 13 March 2014, the House of Lords Committee published a report detailing its post-legislative scrutiny of the MCA. They considered feedback from people, organisations and professionals who use the MCA to determine its effectiveness. The Commission concluded that the MCA has not been completely successful in practice, as the majority of the public are not aware of the MCA safeguards and they are not always recognised by public and private bodies. Moving forward, the Commission recommended the creation of a single independent body to oversee the MCA’s implementation.

Below is a summary of the Committee’s recommendations in relation to three key areas governed by the MCA: (1) lasting powers of attorney; (2) advance decisions (also known as living wills); and (3) the Court of Protection.

Lasting Powers of Attorneys (LPAs)

LPAs enable people with capacity to appoint somebody (an attorney) to make decisions on their behalf in relation to their health and welfare and/or their property and financial affairs. They are valid once registered with the Office of the Public Guardian, but they usually take effect if the person loses capacity.

LPAs are not widely known amongst the public and many organisations, such as banks, do not always understand or recognise the powers granted by LPAs. There is no real sanction for bodies that refuse to acknowledge the LPA power and this can be frustrating for parties involved as the attorney is unable to complete a task for the person’s benefit.

The Committee recommended to:

• Raise awareness of LPAs amongst the public and professional groups;
• Consider how information about registered LPAs can be shared between public and private bodies when suitable;
• Include information about LPAs in guidance provided to local authorities about their responsibilities under the MCA; and
• Consider how attorneys faced with non-compliance by public or private bodies can be supported in the absence of specific sanctions.

Advance Decisions

An advance decision enables a person with capacity to document their wish to refuse specific treatment in the future and when such refusal will take effect. If valid, the advance decision is legally binding on doctors. Advance decisions are important in the context of an increasingly aging population, where people may lose capacity to refuse treatment in the future due to ill health or an accident for instance.

Difficulties arise as the majority of the public are not aware of advance decisions, and there is an absence of a systematic process to record, store and retrieve the advance decision when the person loses capacity. The Committee recommended that:

• The public should be made aware of advance decisions to refuse treatment;
• a system/culture in which health care staff have a better understanding of advance decisions so they can be complied with at the relevant time (provided they are valid) should be promoted;
• Health care staff and patients should discuss advance decisions at an early stage to ensure that such decisions are valid and applicable at the relevant time; and
• The possibility of storing advance decisions onto electronic medical records for ease of retrieval when required should be introduced.

The Court of Protection (CoP)

The CoP has the power to look after the affairs of persons who lack mental capacity by appointing a deputy to make decisions on that person’s behalf in relation to their property and financial affairs and/or their health and welfare.
The Commission spoke to staff and the judiciary of the CoP to understand what hinders the Court’s effectiveness. General problems, such as cost of access, delays and transparency, were identified. The Commission recommended the following:

• To promote transparency, the CoP should have control over what is published about the Court on the government’s centralised website or it should have its own dedicated website;
• The government and the independent oversight body should provide clear guidance to public authorities about when they should proactively refer disputes under the MCA to the CoP. This will also apply when the dispute concerns a person who does not consider they lack capacity;
• Recruit more people to deal with the increasing backlog of cases to shorten the current delay;
• More judgments should be made available to the public to improve transparency. This is already happening following negative press last year about ‘secret courts’. More CoP judgments are being published;
• Mediation should be a pre-requisite for launching proceedings in the CoP, especially with cases concerning property and financial affairs where the costs fall to the person who lacks capacity. Mediation should follow the MCA’s framework for decision making and, if this is not possible, should follow the best interests principle and process; and
• The government should review the availability of legal aid for those who lack the mental capacity to litigate.

In conclusion, the MCA intends to protect vulnerable people in our society, but this has not always been the case in practice. The Commission’s report highlights practical problems and makes recommendations in an attempt to resolve these. It is envisaged that if the government adopts these recommendations, there will be more certainty around the MCA and as a result, vulnerable people will be better protected.

Further information

For further information on mental capacity, LPAs, advance decisions and Court of Protection, please see the service pages listed below on these issues – and please feel free to contact a member of the team if you have any questions.

• Court of Protection and Deputyship
• Advance Decisions