Setting the Context 1A: The Legal Concept of Capacity 1B: Overview of Mental Capacity Law in New Zealand 1C: Overview of mental capacity law in England and Wales

1C: OVERVIEW OF MENTAL CAPACITY LAW IN ENGLAND AND WALES

Historical origins – Magna Carta 1215

  1. The origins of the adult guardianship system in England and Wales are a poignant reminder of the enduring significance of the Magna Carta just after it marked the 800th anniversary in 2015. In about 1270, shortly after the end of the Second Barons’ War, King Henry III, as head of the feudal system, assumed control over the estates of “lunatics” and “idiots”. The powers and obligations held by the Crown became part of “the royal prerogative” and were reserved to the king in his role as parens patriae or father of the nation.120 Subsequently the king delegated the exercise of these powers to the judges.

  2. The area of law now known as mental capacity law was historically referred to as lunacy law and from 1846 to 1947 the judges were called the “Masters in Lunacy”. Senior Judge Lush of the modern day Court of Protection describes this jurisdiction as “optimistic”, because it was based on the premise that lunatics (sometimes of good and sound memory and understanding and sometimes not) might regain capacity and would expect their assets to be restored to them intact, whereas idiots (fools from birth) would not.121

  3. Since the Reform Act 1832, generally regarded as the beginning of modern parliamentary democracy in Britain, there have been changes to mental health and mental capacity legislation about once in a generation to reflect current trends and best practice. The next revision of the English legislation will probably take into account recent developments including the United Nations Convention on the Rights of Persons with Disabilities (CRPD).122

Law reform – United Kingdom and Ireland

  1. In England and Wales, the Mental Capacity Act dates from 2005; it has, however, been described as a “1995 law”, reflecting the policies, philosophy and practice of the 1990s.123 The Mental Capacity Bill was already 10 years old when it was put before Parliament, having originally appeared in a Law Commission report published in 1995.124 The 1995 report was the culmination of a series of four Law Commission consultation papers on decision-making and incapacity, which identified a number of deficiencies in the law, including there being no legislation authorising any other person or court to take a medical decision on behalf of an adult patient without capacity to make a decision. This meant heavy reliance had to be placed on the common law justification of necessity, under which clinicians made the decision to proceed.125

  2. The Law Commission recommended there be a single coherent statutory scheme to which recourse could be had when any decision (whether personal, medical or financial) needed to be made for a person aged 16 or over who lacked capacity.126 The Mental Capacity Act 2005 (England and Wales) eventually came into force on 1 October 2007.

  3. Scotland achieved mental capacity legislation first. The Adults with Incapacity (Scotland) Act 2000 followed recommendations of the Scottish Law Commission127 and was one of the earliest pieces of legislation to be passed by the newly formed Scottish Parliament.128 The Scottish legislation was implemented in stages. There are three main agencies involved: the Public Guardian has a supervisory role and keeps registers of attorneys, people who can access funds, guardians and intervention orders; local authorities look after the welfare of adults who lack capacity; and the Mental Welfare Commission protects the interests of adults who lack capacity as a result of a mental disorder, under both the mental health and the mental capacity legislation.129 The Commission’s functions include: undertaking visits in a variety of settings; carrying out investigations relating to improper detention, abuse, neglect or deficiency of care and treatment; giving advice; promoting best practice; and challenging legislation and social policy where appropriate.130 It has similar investigatory powers to the Health and Disability Commissioner in New Zealand but is not operating under a code of patients’ rights.131

120 Ashton, above n 26 at 11.

121 D Lush “The Evolution of the Statutory Will Jurisdiction” (2014) Eld LJ 173.

122 D Lush, Paper presented to The Academy of European Law’s Conference on the Rights of Persons with Disabilities (12 Dec 2014). Relevant statutes were passed in 1833, 1863, 1890, 1913, 1934, 1959, 1983 and 2005, some of which were more radical than others.

123 Lush, above n 121.

124 Ashton, above n 26 at 68−9. The Law Society provided the stimulus for the review by publishing a discussion document in 1989, “Decision-making and mental incapacity”.

125 Re F (Mental patient: Sterilisation) [1990] 2 AC 1. See also Law Commission Mental Incapacity (UKLC No 231, 1995) at 2.

126 In the early 1990s there were four Law Commission reports that formed the basis of the Mental Capacity Act 2005 http://www.bailii.org/ew/other/EWLC/1991/c119.html.

127 Law Commission Report on Incapable Adults (Scot LC No 151, July 1995).

128 A Ward The Power to Act: The Development of Scots Law for Mentally Handicapped People (Scottish Society for the Mentally Handicapped, Glasgow, 1990) at 121. Much of the impetus for the Scottish law reform and gaining the attention of the Scottish Law Commission was (and still is) driven by Adrian Ward, a solicitor based in Glasgow, who wrote several books in the 1990s on law reform that was occurring internationally, including the New Zealand model in the then newly passed PPPR Act 1988.

129 Mental Health (Care and Treatment) (Scotland) Act 2003 and Adults with Incapacity Act 2000. See www.mwcscot.org.uk.

130 Interview with Colin McKay, Chief Executive, Mental Welfare Commission for Scotland (A Douglass, Edinburgh, 21 May 2015). There has been a steep rise in welfare guardianship applications to the Commission − 58% in four years.

131 A Ruck Keene and E Horne “Why a Mental Capacity Act Commission (and What Should It Look Like)?” (2014) 4 Eld LJ 217.

  1. It is interesting to note that the Scottish legislation establishes a special procedure for approving medical treatment in certain cases for a person who lacks capacity. A second opinion can be obtained from a doctor through the Mental Welfare Commission, to review specified treatments given under that Act, and to adjudicate in cases where there is disagreement between a treating physician and a welfare guardian or attorney, although it is rare for a doctor to carry out treatment in the face of a refusal by a welfare guardian or attorney.132



  2. In Northern Ireland, the Mental Capacity Bill recently passed by the Parliament is the newest and most ambitious piece of legislation.133 It will put Northern Ireland ahead of any other jurisdiction in the world in terms of trying to combine mental health and mental capacity legislation that is strongly (if not exclusively) capacity based. It is a brave attempt to be compatible with the CRPD and to avoid discrimination on the grounds of disability as the sole basis for compulsory treatment. It retains the functional test and the “diagnostic threshold" (impairment of, or disturbance in the functioning of, the brain or mind)134 of the English and Welsh MCA. However, the MCA test is qualified so that it “does not matter whether the impairment or disturbance is caused by a disorder or disability or otherwise than by a disability”.135

  3. In the Republic of Ireland, the Assisted Decision-Making (Capacity) Bill was introduced in 2013. Following substantive amendments during 2015 it was passed into law at the end of the year.136 Law reform is well overdue in Ireland: the new law will replace the Lunacy Regulations Act Ireland 1871, draconian legislation administered through the Wards of Court system in the High Court.

  4. The new legislation in Ireland embraces supported decision-making under the CRPD with a three-stage approach to the assessment of capacity.137 At the least formal end of the spectrum, people can appoint a decision-making assistant when they are concerned that they have or will shortly have difficulty in making decisions without assistance.138 The next step is appointment of a co-decision-maker, which is a contractual arrangement that must be witnessed by two people (one completely independent of either party), but does not require court approval.139 Finally, there is an application process for a decision-making representative appointed by the court, who is an individual with a “bona fide” interest in the welfare of the relevant person, when the person lacks capacity to make decisions.140 The Irish law is progressive and aligns with human rights obligations by recognising legal capacity as a continuum and the role of supported decision-making. Co-decision-making represents an intermediate phase where a person falls somewhere between needing help to make decisions and being completely unable to make decisions for themselves.141

132 Adults with Incapacity Act 2000, ss 48, 50. The Commission has a responsibility to nominate an independent medical practitioner. Interview with Colin McKay, Chief Executive, Mental Welfare Commission for Scotland (A Douglass, Edinburgh, 21 May 2015). Section 51 of this Act provides legislative safeguards where research is undertaken on people who lack capacity similar to ss 30−34 of the MCA. See Chapter 7 Research on People who Lack Capacity.

133 Introduced into the Northern Ireland Parliament on 8 June 2015. The bill was completed on 15 March 2016 and was awaiting Royal Assent at the time of writing this report. www.niassembly.gov.uk/assembly-business/legislation/primary-legislation-current-bills/mental- capacity-bill.

134 Mental Capacity Bill (NI), s 3(1).

135 Mental Capacity Bill (NI), s 3(3).

136 The Assisted Decision-making (Capacity) Act 2015 was passed into law on 30 December 2015. http://www.irishstatutebook.ie/eli/2015/act/64/enacted/en/pdf.

137 GR Ashton, “Has our Mental Capacity Jurisdiction Reached the Turning Point?” [2014] Eld LJ, 214.

138 Assisted Decision-Making (Capacity) Act 2015 (Republic of Ireland), Part 3, s10.

139 Assisted Decision-Making (Capacity) Act 2015 (Republic of Ireland), Part 4, s 17.

140 Assisted Decision-Making (Capacity) Act 2015 (Republic of Ireland), Part 5, s 36.

141 Interview with Dr Frances Matthews, GP/lawyer who has worked as a doctor in Ireland (A Douglass, Dunedin, 25 November 2015).

Mental Capacity Act 2005 (England and Wales) − an overview
  1. The Mental Capacity Act 2005 (MCA) is a comprehensive overhaul of this area of law in England and Wales. The legislation made significant changes to the legal rights afforded to those who lack capacity in England. The MCA establishes a single statutory framework for the making of personal welfare decisions, healthcare decisions and financial decisions on behalf of adults who may lack capacity to make specific decisions for themselves.142 The framework provides a hierarchy of processes, extending from informal day-to-day care and treatment decisions, to decision-making requiring the exercise of formal powers, and ultimately to court decisions and judgments. It also clarifies the actions that can be taken by others involved with the care or medical treatment of people lacking capacity to consent.

  2. The key provisions of the MCA, relating to the guiding legal principles (s 1), the definition of capacity and the legal test for intervention (ss 2 and 3), and the concept of the person’s best interests (s 4), are set out in Appendix C.

  3. The MCA’s starting point is to confirm in legislation the presumption at common law that an adult (aged 16 or over) has full legal capacity, unless it can be shown that they lack capacity to make a decision for themselves at the time the decision needs to be made. It includes provisions to ensure that in any decision-making process people are given all appropriate help and support to enable them to make their own decisions and to maximise their participation in any decision-making process.

  4. The statutory framework is based on two fundamental concepts: lack of capacity and best interests.143 For those who lack capacity to make particular decisions, the MCA provides a range of processes extending from informal arrangements to court-based powers, to govern the circumstances in which necessary decisions can be made on their behalf and in their best interests.

  5. The essential provisions of the MCA (and corresponding provisions of the PPPR Act, where they exist) include:144
  • Principles: Five guiding statutory principles – the values that underpin the legal requirements of the Act (MCA s 1; PPPR Act s 8).
  • Capacity definition: A definition of people who lack capacity (MCA s 2; no equivalent in PPPR Act).
  • Capacity test: A single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time (MCA s 3; PPPR Act ss 6, 12, 25(1)(b), 94(1) and 94(2)).
  • Best interests standard: A single criterion (best interests) for carrying out acts or taking decisions on behalf of people who lack capacity to consent to such acts or take those specific decisions for themselves (MCA s 4; no express criterion in PPPR Act).
  • Codified defence of necessity: Clarifying the law when acts in connection with the care or treatment of people lacking capacity to consent are carried out in their best interests without formal procedures or judicial intervention, with clear restrictions placed on the use of restraint, in particular, on acts resulting in deprivation of liberty (MCA ss 5 and 6; no equivalent PPPR Act, common law defence of necessity).145
  • Lasting powers of attorney: Extending the provisions for making powers of attorney which outlast capacity (referred to as “lasting powers of attorney” (LPA) − equivalent to an enduring power of attorney (EPOA) in New Zealand), covering health and welfare decisions as well as financial affairs, with safeguards against abuse and exploitation (MCA ss 22 and 23; PPPR Act Part 9 EPOAs).146
  • Deputies: Providing for decisions to be made by a “deputy”, to be appointed by a specialist Court of Protection; (MCA ss 16; PPPR Act s 18 (welfare guardian) or s 25 (property manager)).
  • Advance decisions: Provides statutory rules, with clear safeguards, for the making of advance decisions as to refusal of medical treatment (MCA ss 23–25; Code of Rights, Right 7(5) (advance directives)).
  • Research on people who lack capacity: Sets out specific parameters for research involving, or in relation to, people lacking capacity to consent to their involvement (MCA ss 30−34; no provisions in New Zealand legislation, HDC Code Right 7(4) applies).
  • Independent advocates: Providing for the appointment of independent mental capacity advocates (IMCAs) to support people with no-one to speak for them who lack capacity to make important decisions about serious medical treatment and changes of accommodation, deprivation of liberty safeguarding procedures and research; (MCA, ss35−41; no equivalent in the PPPR Act, health and disability advocates with focus on complaints under the HDC Code).147
  • Code of Practice: Authorising statutory guidance to be issued, in the form of a code (or codes) of practice, setting good practice standards for people using the Act’s provisions (MCA ss 42 and 43; no equivalent in the PPPR Act).148
  1. The Mental Capacity Act also created two public bodies: the new Court of Protection (COP) and the Office of the Public Guardian (OPG). Both of these bodies play a key role in supporting and implementing the statutory framework.
Court of Protection
  1. Central to the MCA 2005 is the expanded Court of Protection (COP), which enjoys a wide- ranging jurisdiction to oversee the care of adults lacking mental capacity.149 It is a superior court of record with jurisdiction relating to the whole of the MCA 2005 and with its own procedures and nominated judges.150 As a specialist court it can deal with decision-making for adults (and children in a few cases) who may lack capacity to make specific decisions for themselves. The court is able to establish precedent (set examples for future cases) and it can build up expertise in all issues related to incapacity.151 The court has wide powers including making interim orders and directions and calling for expert reports from a public guardian or a Court of Protection visitor.152 Appeals go directly from the COP to the Court of Appeal.

  2. The emphasis in the MCA is on case-specific decisions and, where possible, the participation of the person who lacks capacity (referred to as “P”). A judge can visit a person in their own home in reaching a decision about whether a person lacks capacity and the court will not shy away from reaching its own decision on that matter, even if it is contrary to the expert evidence before the court.153

  3. The Official Solicitor is the “litigation friend of last resort” for P, especially in serious medical treatment cases.154 To ensure legal representation where the official solicitor is not funded, the Court has issued directions for the person, P, to be a party to proceedings and is in the process of establishing a panel of “accredited legal representatives”.155 In common with the Family Court, there is a move towards greater transparency of court hearings and decisions.156

  4. The Court has power to appoint substitute decision-makers, known as deputies,157 to make decisions for people who lack capacity, or to remove deputies or attorneys who act inappropriately. The thrust of the MCA is that decisions about complex and serious issues are taken by a court rather than any individual, subject to commonsense practicalities such as where a series of decisions need to be made (for example, medical procedures) or the management of substantial assets.

  5. A deputy’s powers must be as limited in scope and duration as is reasonably practicable in the circumstances.158 By far the majority of the appointments of deputies, and of contested cases, relate to property and similar affairs, not personal welfare. In 2014, there was an increase of cases to 26,000, of which 90 per cent concern property and affairs, and of these, 90 per cent are uncontested.159

  6. The living arrangements for people who lack capacity, and how healthcare packages are funded, are often central to the issues before the court under the MCA. In In the matter of MN (Adult),160 for instance, the Court of Appeal considered the scope of the COP’s jurisdiction where a care provider was unwilling to provide or fund the care sought by the patient or, as here, by the patient’s family. The case concerned where a young man should live (and receive education and care), and supervision of his contact with his parents and other family members where the relevant funding body had made it clear that it was not prepared to fund contact between him and his family at the parents’ home. Sir James Munby P, giving the lead judgment, held that the COP was bound to choose between the options that were actually available.161 It had no more power, just because it was acting on behalf of an adult who lacked capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than would the adult if they had capacity to obtain the resources personally.

  7. While the MCA is considered sensible legislation, the statutory jurisdiction is limited to matters that fall under the MCA. This limitation can be problematic. For example, cases involving vulnerable adults (who have capacity) require separate proceedings under the inherent jurisdiction of the High Court, as do public law cases involving judicial review applications to the High Court’s Administrative Division. Mr Justice Charles, Vice President of the COP, considers a better solution would be to create a “one-stop shop” designed to cover not only the law under the statute but those issues that can only be decided under the inherent jurisdiction or public law jurisdiction.162

142 In England and Wales, many people lacking capacity due to mental disorder (including learning disability and dementia) come under the Mental Health Act 1983, although the concept of capacity is not mentioned in the legislation.

143 These are discussed in Chapter 4 Defining Capacity and Chapter 5 Best Interests.

144 Sections 1−4 of the Mental Capacity Act 2005 are set out in full in Appendix C.

145 The provisions of s 5 are based on the common law “doctrine of necessity” as set out in Re F, above n 125. The MCA 2005 was subsequently amended by the Mental Health Act 2007 to provide procedural safeguards in cases where someone lacking capacity may be deprived of their liberty and their best interests – discussed below.

146 Ashton, above n 26 at 165. The existing enduring powers of attorney regime under the Enduring Powers of Attorney Act 1985 continues concurrently with the same legal principles as existed when they were made, although within the framework of the MCA 2005. The EPA jurisdiction had several drawbacks, including that EPA relates only to property and affairs of the donor and as they operated with little official intervention were not viewed as protecting the incapable person who is vulnerable and at risk from abuse.

147 Currently referred to as the “Deprivation of Liberty Safeguards” (DoLS).

148 Mental Capacity Act 2005, ss 35−41, Code of Practice 2007.

149 The MCA extended the jurisdiction of the old Court of Protection from property alone to personal care and welfare.

150 Mental Capacity Act 2005, s 45. 151

151 R Jones Mental Capacity Act Manual (6th ed, Sweet & Maxwell, London, 2014) at 383. There are extensive Court of Protection Rules that can be made under s 51, currently revised in 2014 and again 152 in 2015.

152 Mental Capacity Act 2005, s 49.

153 Interview with Judge Elizabeth Batten, Court of Protection (A Douglass, London, 16 April 2015).

154 Interview with Janet Illett, Deputy Official Solicitor, (A Douglass, London, 7 May 2015).

155 The Court of Protection (Amendment) Rules 2015, r 3A.

156 Sir J Munby “Practice Guidance (Transparency in the Court of Protection): Publication of Judgments” (16 January 2014) https://www.judiciary.gov.uk/wpcontent/uploads/JCO/Documents/Guidance/transparency-in-the- cop.pdf.

157 Mental Capacity Act 2005, s 19(9)(a). There is a panel of professional deputies who are often solicitors. The court can request from a property and affairs deputy some form of security (such as a guarantee bond).

158 Mental Capacity Act 2005, s 16(4) as discussed in G v E [2010] EWHC 2512 (COP) Baker J at [59].

159 Sir William Charles, Vice-President of the Court of Protection of England and Wales (to the House of Lords MCA Committee, 26 November 2013) http://www.parliamentlive.tv/Event/Index/0fe8cea8-89db- 453c-afb2-7a97d8b20db1.

160 [2015] EWCA Civ 411, Sir James Munby P, upholding the decision of Eleanor King J in the Court of Protection.

161 In the matter of MN, above n 160 at [34]. Leave has been granted to one of MN’s parents to appeal the decision of the Court of Appeal on whether the COP is constrained solely to consider available options presented to it.

162 Interview with Mr Justice Charles, Vice-President, The Court of Protection (A Douglass, Royal Courts of Justice London, 9 June 2015).

Serious healthcare and treatment decisions
  1. As well as property and affairs, the COP now also deals with serious decisions affecting healthcare and personal welfare matters. These matters were previously dealt with by the High Court under its inherent jurisdiction, if they came before the courts at all. The COP can make a declaration as to the lawfulness of a specific act relating to a person’s care or treatment (where somebody has either carried out the action or is proposing to).163

  2. This power to decide on the lawfulness of an act is particularly relevant for major medical treatment cases where there is doubt or disagreement over whether the treatment would be in the person’s best interests.164 In addition, the Code of Practice refers to the kind of cases that should be brought before the Court. These include:

    • decisions about proposed withholding or withdrawal of artificial nutrition and hydration from patients in a permanent vegetative state;165
    • cases involving organ or bone marrow donation by a person who lacks capacity to consent;166
    • cases involving the proposed non-therapeutic sterilisation (e.g. for contraceptive purposes) of a person who lacks capacity to consent.167
  1. There is a specific process for dealing with “serious medical treatment” cases which must be referred to the Court,168 including cases involving a “novel ethical dilemma”. Practice directions define “serious medical treatment” as treatment that involves providing, withdrawing or withholding treatment in circumstances where there may be a fine balance between the benefits and burdens to the patient, or situations in which there is a choice of treatment and what is proposed would likely involve serious consequences for the patient.169

  2. There are many reported cases where life-saving treatment has been ordered in the face of trenchant opposition from the person who lacks capacity. For example, in Re E (Medical Treatment: Anorexia)170 all of the parties supported with different degrees of strength the view that it would not be in the best interests of a 32-year-old woman with severe anorexia nervosa to be force-fed. Nonetheless Jackson J held that, as the woman did not have capacity to make the decision about treatment by forcible feeding, the court must take the decision that was in her best interests.

  3. By comparison, in a more recent case, Wye Valley NHS Trust v Mr B,171 the COP affirmed the right of an individual, deemed to lack capacity as a result of mental illness marked by religious delusions, to refuse life-saving medical treatment. Even though Mr B was found to lack capacity to refuse amputation of his gangrenous leg, Jackson J came to the clear conclusion that enforced amputation would not be in his best interests.172

  4. While these serious medical treatment cases are considered in a different medico-legal context than New Zealand, they demonstrate the ability of the Court to be an independent decision-maker and take the burden of decision-making from clinicians and healthcare providers in circumstances that are complex and ethically challenging for all of the parties involved.
The Public Guardian and the Register of Powers of Attorney
  1. The MCA established a new statutory office, known as the Public Guardian. The Office of the Public Guardian (OPG) is an executive agency of the Ministry of Justice, set up to support the Public Guardian. These agencies exist to help make sure that adults who lack capacity to make decisions for themselves are protected from abuse. The functions of the Public Guardian fall into three categories: establishing and maintaining a register of LPAs; supervising deputies (welfare guardian or property manager) appointed by the court; and investigations – referred to as “safeguarding referrals”.173

  2. Since the commencement of the MCA in October 2007, the OPG has registered a total of 1,436,731 LPAs.174

  3. The key objective of the OPG is to develop an approach to resolving issues with deputies and attorneys that does not require recourse to the COP, by building an in-house capacity to use mediation to resolve cases where parties are in dispute.175

163 Mental Capacity Act 2005, s 15.

164 Department of Constitutional Affairs Mental Capacity Act 2005, Code of Practice “Serious Healthcare and Treatment Decisions” (TSO, Norwich, 2007) at 143−145. Although this power is based on the declaration of lawfulness (which doctors might want), the decision of the Court as recorded in the order under s 16(2)(a), which in effect represents the giving of the necessary consent on the person’s behalf. Email from A Ruck Keene (barrister) to A Douglass (17 January 2016). See for example, Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 and In the Matter of MN, above n 160.

165 Airedale NHS Trust v Bland [1993] AC 789. The COP recently expanded the declaratory jurisdiction to withdrawing life-sustaining treatment from someone who was only in a minimally conscious state, not just a permanent vegetative state: M v Mrs N (by her litigation friend, the Official Solicitor) [2015] EWCOP 76(Fam).

166 Re Y (Mental Incapacity: Bone Marrow Transplant) [1996] 2 FLR 787. It was in Y’s best interest for her to donate bone marrow to her sister. The Court decided that it was in Y’s best interest to continue to receive strong emotional support from her mother, which might be diminished if her sister’s health were to deteriorate further, or she were to die.

167 Re A (Medical Treatment: Male Sterilisation) (1999) 53 BMLR 66. A mother applied for a declaration that a vasectomy was in the best interests of A, her son (who had Down Syndrome and was borderline between significant and severe impairment of intelligence) in the absence of his consent. After balancing the burdens and benefits of the proposed vasectomy to A, the Court of Appeal held that the vasectomy would not be in A’s best interests.

168 Airedale NHS v Bland, above n 165. The case law requirement to seek a declaration in cases involving the withholding or withdrawing of artificial nutrition and hydration to people in a permanent vegetative state is unaffected by the Act.

169 Court of Protection: Practice Direction 2015, r 9E, authorised under Mental Capacity Act 2005, s 52. See for example, NHS Trust v FG [2014] EWCOP 30, where Mr Justice Keehan annexed guidance to the judgment in cases where a pregnant woman who lacks, or may lack, the capacity to make decisions about her obstetric care resulting from a diagnosed psychiatric illness.

170 [2012] EWHC 1639 (COP).

171 [2015] EWCOP 60 Peter Jackson J.

172 Wye Valley NHS Trust v Mr B, above n 171 at [38]: “A conclusion that a person lacks decision-making capacity is not an ‘off-switch’ for his rights and freedoms” per Jackson J. See discussion of this case in Chapter 2E Supported Decision-making.

173 Mental Capacity Act 2005 s 59; Office of the Public Guardian Annual Report and Accounts 2013−14, (William Lea Group, London, 2014).

174 This includes cases that are no longer on the Register, due to withdrawal or cancellation. Interview with Marion Bowgen, Supervision Project, Office of the Public Guardian (A Douglass, London, 4 June 2015).

175 P Hartley-Jones “The Role of the Office of the Public Guardian Investigations of Abuse” (2011) 13 J Adult Protect 160 at 161.

  1. Safeguarding referrals are received from a number of sources, including relatives, local authorities, care homes and financial institutions.176 The Code of Practice widely defines the types of abuse that the MCA protections are designed to prevent, including financial, physical, sexual, psychological abuse, and neglect and acts of omission.177

  2. Court of Protection visitors have an important part to play in investigating possible abuse.178 They advise on how anyone given power under the Act should be, and is, carrying out their duties and responsibilities. There are two types of visitor: general visitors and special visitors. Special visitors are registered medical practitioners with relevant expertise. The COP or Public Guardian can send whichever type of visitor is most appropriate to visit and interview a person who may lack capacity, or an attorney or deputy, and to inspect any relevant healthcare or social care records.

  3. The Public Guardian investigation process can ultimately result in an application to the court to remove a deputy or an attorney. Denzil Lush, Senior Judge of the COP, credits the OPG’s supervisory role over deputies, and its effectiveness in identifying wayward deputies, for the increasing incidence of applications to the court – an increase from 185 in 2013 to 345 in 2014.179

  4. In Judge Lush’s experience, financial abuse in England is almost exclusively perpetrated by close relatives.180 Of a sample of 250 cases in which the power of attorney was revoked by the court because of financial abuse of the donor of the power, the victims of abuse were generally four or five years older than the average donor. Of the abused donors, 174 (70 percent) were women and 76 (30 percent) were men, compared with 61.25 percent and 38.75 percent respectively in the overall sample of 3,958 donors as a whole.181 Further conclusions can be drawn from the relationship of the abusive attorney to the donor. In 68 percent of cases, the abuser was the donor’s child; 35 percent of the donors were abused by their son, 22 percent by their daughter, and 11% by more than one child.

  5. The typical scenario is not of an unscrupulous individual downloading a power of attorney form from the internet and getting a vulnerable elderly person to sign it, but quite the opposite In three-quarters of these abuse cases there was input from the legal or medical professions at the time of the creation of the power; there are individuals who are required to assess the donor’s capacity to create an enduring power of attorney.182

  6. The granting of a power of attorney is an important expression of autonomy: it allows a prior exercise of the individual’s autonomy, when the person has capacity, to direct or make provision for when they may subsequently lack capacity.183 The combination of having a register of powers of attorney plus a public agency to oversee its use has been a cornerstone of the new COP’s ability to tackle financial crimes and abuse of mainly older adults who lack capacity.

  7. In New Zealand, the 2007 amendments to the PPPR Act have not resolved the ongoing problems of misuse and abuse of EPOAs, first raised by the Law Commission in 2000 and 2001,184 and still apparent in the minor changes currently being made to Part 9 of the PPPR Act.185 A key factor promoting the success of the English model is the fact that the national register of LPAs is supported by a public agency, to ensure effective supervision of such powers of attorneys.. This would therefore be an essential reform to be adopted in New Zealand.186

176 Office of the Public Guardian, Annual Report and Accounts 2014-2015 (William Lea Group, London, 2015) at 15. www.gov.uk/government/publications. The OPG investigated 743 cases of the 1970 safeguarding referrals during the 2014/15 business year, and 695 investigations were concluded.

177 Mental Capacity Act 2005, Code of Practice, above n 164 at 245.

178 Mental Capacity Act 2005, Code of Practice, above n 164 at 248.

179 D Lush “Financial Crime Committed Against the Elderly and Infirm: A Review of its Increasing Prevalence and how Effective Practitioners, Public Bodies and the Courts are Tackling It” (paper presented at joint seminar STEP London Central Branch and ACTAPS, London, 10 December 2014).

180 For example, the following three cases all involve members of the person’s family: Re Harcourt [2013] COPLR 69, Mrs Harcourt’s daughter; Re Buckley [2013] COPLR 39, Miss Buckley’s niece; and Re GM [2013] COPLR 290, GM’s late husband’s niece and great niece.

181 Lush, above n 179 at 10.

182 Ibid. Of a sample of 100 cases, 51 were legal professionals; solicitor, barrister or legal executive.

183 Mental Capacity Act 2005, ss 24−26. The provision for advance directions (known as advanced directives in New Zealand) are also an expression of a person’s prior autonomy.

184 Refer above: PPPR Act – law reform at 17.

185 The current amendment proposes to reverse the independent witnessing requirements for EPOAs under the 2007 Amendments. The Law Society submitted that the 2007 amendments increased the cost and complexity of establishing EPOAs and as a result the number of people completing EPOAs has decreased not increased: New Zealand Law Society submission on Part 21 (Enduring Powers of Attorney) Statutes Amendment Bill 2015, dated 29 January 2016.

186 See Chapter 8 Conclusion - Checklist for Reform.

Mental Health Act 1983 (MHA)

  1. In addition to the MCA, England and Wales have the Mental Health Act 1983 (MHA) and its accompanying Code of Practice187 which allow for the detention, hospitalisation, and/or treatment of people with a “mental disorder”. Mental disorder is broadly defined as “any disorder or disability of the mind”,188 and can include learning disability and personality disorder. English mental health law provides for a system of guardianship for some patients undertheMHA,although“capacity”isnotaconceptreferredtointhelegislation.189 Guardians appointed under the MHA have the exclusive right to decide where a patient should live, taking precedence over an attorney or deputy appointed under the MCA.190

  2. The dividing line between the need to use the compulsory powers of the MHA and the need - to respect a person’s prior exercise of autonomy in an advance decision is not always clear cut. The powers under the MHA to detain and treat people for a mental disorder apply even if a patient has capacity under the MCA. In Nottinghamshire Healthcare NHS Trust v RC 191 a young man with capacity had a severe personality disorder and was detained under the MHA. RC required a blood transfusion, but was a practicing (unbaptised) Jehovah’s Witness. The Court held that RC had capacity to refuse a blood transfusion as it was not a medical treatment for the mental disorder.192 It upheld the validity of his advance decision, despite self-harming behaviours and the fact that RC was pursuing a “self-destructive course” leading to inevitable death. Justice Mostyn recognised the ethical dilemma that confronted the treating psychiatrist who had the power under the MHA to override RC’s advance decision and impose treatment against his will but instead used the court process to confirm the validity of the advance direction.

  3. In 1999, an expert committee, chaired by Professor Genevra Richardson, reviewed the mental health legislation in England and Wales, recommending specific legislation for people with long-term incapacity.193 The report foreshadowed the problems with how to respond to informal patients not subject to compulsory powers under the MHA and the interface with the subsequent mental capacity legislation.
Ongoing law reform in England and Wales

  1. The comfortable assumption of the English Mental Health Act (of 1959 and 1983), that people could be admitted to hospital and detained there for psychiatric treatment, without formality, provided they did not object, was dealt a “serious blow”194 by the European Court of Human Rights in Strasbourg (ECtHR)195 following a decision in the House of Lords.196 It exposed a gap in the interface between mental health and mental capacity law, known as the “Bournewood gap”: this is the inability of compliant people who lacked capacity to object to their detention, identified in a case involving Bournewood Hospital. Further changes were made to the Mental Capacity Act in an attempt to protect this vulnerable group of informal compliant patients who lacked capacity and did not have the benefit of the safeguards provided by the mental health legislation.

  2. As Lady Hale explains in her textbook on mental health law: 197

    If the reality was that a person was being deprived of his liberty within the meaning of Article 5 [of the European Convention on Human Rights], there had to be some safeguards to protect him against arbitrary action, even if this was meant for his own good. Indeed safeguards against unjustified deprivation of liberty were needed, whether the reason for it was mental or physical disorder or simply to keep him safe.

  3. The result was the Deprivation of Liberty Safeguards regime (universally known as the DoLS), inserted into the Mental Capacity Act 2005 by the Mental Health Act 2007.

  4. This regime was enacted to “plug” the Bournewood gap. First, there was an amendment to the Mental Capacity Act in 2007 to insert certain procedural safeguards for detained incapacitated persons, called the “DoLS”. Second, a post-legislation scrutiny report was prepared by the House of Lords in 2014 that described the DoLS as not fit for purpose. Third, around the same time, a decision of the Supreme Court, Cheshire West, expanded the range of circumstances in which a person must be regarded as deprived of their liberty. So many more people in care homes and hospitals, as well as in community settings such as foster care placements, were deprived of liberty than had previously been understood. Some lawful justification for this was therefore required.

  5. Under the MCA, the DoLS set out a set of procedures that must be followed to render the person’s deprivation of liberty lawful: namely, when they are detained pursuant to a decision made by the court or under an urgent or standard authorisation given under the DoLS regime.198 In Cheshire West, the majority in the Supreme Court held that, in cases involving the placement of mentally incapacitated persons, the test to be applied in determining whether they are being deprived of their liberty is whether they are under the continuous supervision and control of those caring for them and are not free to leave. But the DoLS regime does not authorise such deprivation of liberty outside a care home or hospital. So, the consequence was that, where it occurred in other settings, such as in a foster home, an application to the COP would be required to obtain the necessary authority, as DoLS does not extend to such settings.

  6. The DoLS were originally designed to provide a comprehensive set of safeguards for what was thought would be a relatively small number of people who would be made subject to them (less than 6,000 people in England and Wales).199 However, since the Cheshire West judgment there has been a significant increase in DoLS applications and in the associated resource implications for funding the scheme.200 As an indication of the potential impact of the Cheshire West judgment, the Alzheimer’s Society predicts that there will be one million people with dementia in the United Kingdom by 2025. The potential increase of people who may lack capacity poses a tremendous challenge for everyone: sufferers, carers and medical and social care professionals.201

  7. The scale of the problem following Cheshire West is graphically summarised by Allen:202

    We are presently witnessing something very unique, something historical. And that is the mass authorisation of deprivation of liberty of a significant proportion of the disabled population. Tens of millions of pounds are being diverted from health and social care budgets to enable such authorisations on an industrial scale. Up and down the country – as Art 5 ECHR takes hold – an additional layer of legal procedures are now required to oversee health and social care. We are in the throes of what might be called a great confinement.

  8. England is now reviewing the labyrinth of reforms at a time when there is a heavy burden on consulted on a proposal to replace the DoLS that would cover both institutional and the National Health System to implement the DoLS, and in the wake of the Winterbourne View scandal affecting the rights of people with learning disabilities.203 The Law Commission has consulted on a proposal to replace the DoLS that would cover both institutional and “community” settings, and is required to provide draft legislation to the Government by the by the end of 2016.204

187 Department of Health Mental Health Act 1983: Code of Practice (TSO, Norwich 2015) at 22. The Code sets out the overarching principles of the Act, which are not included in the statute itself.

188 Mental Health Act 1983, s 1(2).

189 Mental Health Act 1983, s 8(1)(a).

190 MHA Code of Practice, above n 187 at 342.

191Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1317 (COP). In this case, Mostyn J sat as a COP judge to consider RC’s capacity and the advance direction to refuse treatment under the MCA, but as a High Court judge considering the lawfulness of the actions of the treating psychiatrist.

192Mental Health Act 1983, s 58.

193Report of Expert Committee, Review of the Mental Health Act 1983 (Department of Health, London, 1999).

194B Hale Mental Health Law (5th ed, Sweet & Maxwell, London, 2010) at 4.

195HL v United Kingdom, above n 4. The European Court of Human Rights held that the use of the common law power of necessity to detain people in this context, rather than using the Mental health Act 1983, was not adequate protect against the risk of arbitrary detention and was in breach of art 5 (1)(e) of the European Convention on Human Rights 1950 (ECHR) and also art 5(4) because of the lack of any adequate court review of the lawfulness.

196Bournewood, above n 5.

197 Hale, above n 194 at 4.

198 In addition, deprivation of liberty may be necessary for life-sustaining treatment or doing any “vital act”: the National Health System to implement Mental Capacity Act 2005, ss 4A and 4B.

199 Interview with Tim Spencer-Lane, Nicholas Paines QC, Commissioner responsible for the DoLS and the Rt Hon Sir David Lloyd-Jones, Chairman of the Law Commission of England and Wales (Law Commission) (Alison Douglass, London, 28 Aril 2015). In a 12 month period in 2013-14 the total number of applications in England was 11,300. In the subsequent 12 month period in 2014−15 there were 113,300 DoLS applications, of which 36 percent were granted (40,000). These figures are considered to be the “tip of the iceberg” as some local authorities are not prioritising cases of alleged deprivation of liberty in supported living and community settings, such is the burden that has been placed upon them: Law Commission Mental Capacity and Deprivation of Liberty: A Consultation Paper No.222 (TSO, London, 2015) at 17.


200 There has also been resistance among some members of the judiciary who have stated their dissatisfaction with the Cheshire West judgment arguing that the law is “In a state of serious confusion”: Mostyn J. This criticism was rejected by the Court of Appeal: “Even if Cheshire West is wrong, there is nothing confusing about it. In our view, the judge’s passionate view that the legal analysis of the majority in Cheshire West is wrong is in danger of distorting his approach to these cases.” KW & Ors v Rochdale Metropolitan BC [2015] EWCA Civ 1054 at [33], Lady Justice Black, MR.

201 A Ruck Keene, V Butler-Cole, N Allen and others, 39 Essex Street “Mental Capacity Law Guidance Note” (London, 2014) www.39essex.com/mental-capacity-law-guidance-note-brief-guide-carrying- capacity-assessments.

202 N Allen “The (not so?) great confinement” (2015) Eld LJ 45.


202 The Winterbourne View hospital inquiry occurred at Winterbourne View, a private hospital in South Gloucestershire, England. A Panorama investigation, broadcast on television in 2011, exposed the physical and psychological abuse suffered by people with learning disabilities and challenging behavior at the hospital despite the fact that local services and the English national regulator (Care Quality Commission) had received various warnings. There have been subsequent reports for a new national framework: Transforming Care and Commissioning Steering Group Winterbourne View − Time for Change: Transforming the commissioning of services for people with learning disabilities and/or autism (NHS, London, 2014).

204 These developments and how New Zealand might address the Bournewood gap are discussed Chapter 3 Liberty Safeguards.


Problems with implementation of the MCA

  1. In addition to the DoLS scheme, the second problem highlighted by the House of Lords’ report in 2014 was with the implementation of the MCA. There is a lack of awareness and understanding of the MCA which has led, in some instances, to perverse outcomes for people who lack capacity. As poignantly stated by Baroness Baker, the House of Lords Select Committee was “trying to get to the bottom of why this legislation, which everybody tells us is so good, is so patchily observed or widely ignored”.205

  2. The report found that prevailing cultures of paternalism (in health) and risk aversion (in social so good, is so patchily observed or widely ignored”.205 care) had prevented the Act from becoming widely known or embedded. It called for the establishment of an independent oversight body, as the Act (and its core principles) had failed to become embedded in everyday practice.206

  3. Too often, the empowering ethos of the MCA 2005 gave way to concerns of paternalism, risk had sometimes become an excuse for the provision of substandard care, or indeed denial of care entirely, on the basis of a highly suspect view that the person was agreeing and had capacity to agree to such inappropriate care. This was particularly evident when the choice of the person lacking capacity worked to the financial advantage of a service provider. There was little evidence of supported decision-making, notwithstanding its express requirements in the Act. 207

  4. The English experience to date has demonstrated that even the most up-to-date law that has a clear explanation of its core principles, is difficult to embed. It requires participation from the professionals and the appointed decision-makers who must implement the law.
Vulnerable adults and the inherent jurisdiction

  1. Traditionally, the law’s protective function was engaged by a person’s lack of capacity. More recently, the English courts have developed the notion of “vulnerable adults”, adults who are capacitous208 (and therefore are not subject, now, to the MCA) but who are nevertheless thought to need protection

  2. Until 1959, the English High Court and its predecessors had jurisdiction over the lives of adults who lacked capacity. However, according to Munby LJ (now President of the CoP), although the court’s inherent jurisdiction in relation to incapacitated adults’ financial affairs was transferred to the (old) Court of Protection, the corresponding jurisdiction in relation to personal care and welfare was “inadvertently abolished”.209 As a result, the court’s inherent jurisdiction has been rediscovered to fill this gap.210

  3. In the leading judicial statement in this respect, Munby identified the “vulnerable adult” as:211 (S)omeone who whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation.

  4. In the same judgment, Munby described the inherent jurisdiction as follows:212 ... the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.

  5. The Court of Appeal subsequently made clear that this jurisdiction had survived the coming into force of the MCA, in DL v A Local Authority213 where elderly parents with capacity were abused and unduly influenced by their son to the extent that DL was seeking to coerce his father into transferring the ownership of the house into DL’s name and the mother was forced to move into a rest home. The Court found the parents’ capacity to make balanced and considered decisions about their relationship with their son was compromised and invoked the inherent jurisdiction to make orders to control DL’s behaviour.214

  6. The wide-ranging jurisdiction and the basis upon which it might intervene in an individual’s decisions has, however, been criticised as leading to a confused and outmoded concept of the vulnerable older adult, as it conflates what is considered as in a person’s best interests under the MCA, with the goal of facilitating an individual’s autonomous decision-making capability.215 The use of the inherent jurisdiction has none of the accompanying safeguards for assessing what is in a person’s best interests under the MCA. It blurs the dividing line between those people on whose behalf decisions can be taken by a court and those people who need protection but in respect of whom decisions cannot be taken. As Ruck Keene says:216 [The inherent jurisdiction] risks leading to a situation where decisions are taken on behalf of the capacitous but vulnerable, rather than steps being taken to create a safe space for them to take their own decisions, at which point the entire point of the MCA disappears.

  7. A justification for the expanded jurisdiction is the difference between having capacity and being autonomous: a person may have capacity but be unable to exercise it because they are in an abusive relationship. Protection of autonomy requires the courts to protect people who are robbed of their autonomy and who are pressurised or forced by others (or by delusion) into acting against their genuine wishes.217

  8. The real dividing line between the MCA and the inherent jurisdiction remains uncertain, as does the extent to which undue influence, exerted by others, has a bearing on a person’s capacity for decision-making, whether in respect of property or personal care and welfare decisions. In Re BKR, a recent case decided by the Singapore Court of Appeal (where the Singapore MCA is almost identical to the English MCA), the Court took into account an elderly woman’s susceptibility to undue influence in finding she lacked capacity. The Court observed that there was a “confluence of mental impairment and undue influence”, and that the proven or potential presence of undue influence is relevant to an account of the person’s circumstances and a finding of incapacity.218

  9. The problem that has emerged under English law is that there are some individuals who retain capacity but who are in need of protection. Incapacity as defined under the MCA requires the inability to make a decision to be linked to a person’s impairment (“impairment of, or a disturbance of the functioning of, the mind or brain”).219 Not only is this approach viewed as discriminatory under human rights law (CRPD), it has created a problem because the court can only intervene under the MCA when the inability to make a decision is due to the impairment. 220 The inherent jurisdiction has been used to fill this lacuna in the English law.
MCA – a summary
  1. There are some very positive features of the Mental Capacity Act, notably much greater transparency (of both the standards and the process) concerning decision-making regarding people who lack capacity, under a single piece of legislation that has codified much of the common law. The Act provides for the specialised jurisdiction of the Court of Protection with corresponding expertise; a Code of Practice to accompany it; a streamlined procedure for dealing with serious medical treatment cases; and a register of powers of attorney, with oversight by the Office of the Public Guardian which can investigate potential abuse and initiate reviews by the Court of Protection.221

  2. Despite the distraction of the ongoing reform of the DoLS, the mental capacity legislation in England has provided a real focus and visibility for mental capacity law and practice. There is corresponding recognition that issues of capacity permeate many fields of law and practice, not just those within the scope of the Court of Protection. Better training of lawyers and judges has been regarded as essential to develop a new legal culture that takes into account the needs of vulnerable individuals who as members of society encounter the legal system.222

  3. The changing legal landscape and the impetus for ongoing reform of capacity law in the United Kingdom and elsewhere is due, in part, to contemporary thinking about the adequacy of the law’s approach to autonomy and about the growing role to be played by human rights instruments in the construction of capacity as a legal concept.

205 Select Committee on the Mental Capacity Act 2005, Volume 1 (2013) 771 cited in P Skowron “Evidence and Causation in Mental Capacity Assessments PC v City of York Council [2013] EWCA CIV 478” Med L Rev fwu014

206 HM Government Valuing every voice, respecting every right: Making the case for the Mental Capacity Act – The Government’s response to the House of Lords Select Committee Report on the Mental Capacity Act 2005 (Williams Lea Group, London, 2014) http://www.gov.uk/government. The independent oversight body was a recommendation of the Government’s response, but has not yet
eventuated.

207 Mental Capacity Act 2005, ss 1(3), 3(2), 4(4). See also P Bartlett “Good Act, Poor Implementation: A Report of the House of Lords Post-Legislative Scrutiny Committee on the Mental Capacity Act 2005” (2014) 4 Eld LJ 123 at 157.

  © 2019 Alison Douglass