Court of Protection: respect for religious views

Re P (Capacity to tithe inheritance) [2014] – having respect for P’s religious views has been upheld by the Court of Protection

This case was brought by a local authority Deputy for Property and Affairs for a 40 year old man (“MS”) with schizoaffective disorder.  Evidence was submitted that MS believed he was a “messianic figure” with delusional religious ideas, including a firm belief that he was the first prophet outside the Godhead: only the Father, Son and Holy Ghost were greater beings than him.

MS wanted to “tithe” 10% of his inheritance to the Church of Latter Day Saints.  Tithing is the practice of giving one tenth of one’s earnings or annual farm produce for religious purposes and is referred to in the Bible.  The amount MS wanted to tithe was around £7,000, which the local authority said was about a year’s worth of MS’s living expenses.  If he gave the tithe, then he would be left with around six years’ worth of money if he continued to spend at the same rate.

The local authority applied to the Court of Protection to determine whether MS had capacity to tithe and if not, whether this arrangement should be authorised in his best interests.

District Judge Eldergill considered evidence from MS’s mother who thought he could be under pressure from the church to donate his money and that he remained “very vulnerable financially.”

The local authority pointed out that making this tithe would mean that MS’s capital would drop to the level at which he needs to claim state benefits “some 56 weeks sooner than will be the case if no donation is made.

District Judge Eldergill rejected these submissions. He said:

When people with finite resources give money to charity […] they are not required to calculate the effect of their gift on future state benefit claims or to regard themselves as precluded from acts of charity.”

There was conflicting evidence from MS’s consultant psychiatrist, Dr M, and a Special Visitor (Dr T) requested by the Court.  The judge preferred Dr T’s evidence that MS’s desire to give his money to church was “part of his religious beliefs but not in my opinion part of his delusional belief system.”

MS acknowledged in his evidence that he had a “Mount Everest of a credibility problem” to surmount, but told the Court he prized his independence and autonomy and his decision to give a tithe to the church (even if he was not a member) was “both rational and Biblical.”  MS did not consider himself to be exploited and believed that charitable giving was his prerogative.

District Judge Eldergill set out  the law relating to mental capacity and gifts, highlighting that “whether an individual has capacity may depend in part on the nature and complexity of the decisions to be made.” He said “the fact that a person has a grandiose belief with a religious content does not demonstrate that the whole of their religion is delusionally-based and caused by mental illness.”  In the judge’s view MS had capacity to tithe and had litigation capacity (contrary to the opinions of both expert psychiatrists).  District Judge Eldergill said that medical evidence is only part of the evidence, and that evidence from other professionals, conduct observed by the court and submissions by the individual were also important.  He thought the issues in this case were not particularly complex, MS understood them well and he presented his case very ably.

DJ Eldergill said that even if he had found that MS lacked capacity, he would have authorised the tithe on his behalf as being in his best interests.  The law has always sought to show respect for religious belief and freedom of consciousness and the judge praised the local authority deputy for bringing the application, as they had been respectful of MS’s “dignity, wishes and feelings.”

This is another transparent judgment from the “Secret Court” showing how carefully the judge will analyse the evidence before him and consider the importance of P’s own views, wishes and feelings.  As District Judge Eldergill commented “good reasons are required to interfere in matters of conscience and spiritual belief,” and in this case the Court did not think it necessary to interfere.

For further information about Court of Protection issues, please contact Alison Lamont or a member of our Court of Protection team.

A day in the life of a professional Property & Affairs Deputy: Investments

Caroline Featherby is a trainee solicitor who assists with applications and administration on behalf of our Court of Protection team. In this series of posts Caroline looks at the processes involved in an ongoing deputyship, reflecting on the hurdles faced by the team as well as the life changing decisions they make to support people who are unable to manage their own affairs. 

Where a patient (“P”) has significant capital, received either by way of a compensation award or, for example, through the sale of a property, it is the role of the Deputy to consider whether it is appropriate for investments to be made out of the capital.

The first step is to prepare a cash flow forecast for P, reviewing all incoming and outgoing payments.  The deputy can then calculate how much money will be required for P to continue living comfortably, before releasing a sum of the capital to be invested.

P’s individual requirements will have an effect on the level of risk that can be taken, so the family and in some circumstances, P, will meet more than one Investment Manager and/or Financial Planner to consider a strategy and the investments that are appropriate for P.    Important issues include:

(1)    whether the money invested needs to grow and by what margin;

(2)    whether the funds will need to be accessed in a year, two years or five years to provide for future expenditure such as care costs; and

(3)    whether a level of income needs to be generated to feed back into the deputy account. If this is not required the income can be re-invested and this will in turn create further income.

A formal report is generated setting out the comments, observations and recommendations of those instructed.

Where the monies are held in the Court Funds Office, the Deputy submits the advice and requests that the required funds are paid into the deputy account to be invested accordingly.

In many cases the monies are divided into separate pots:

(1)    an investment might be made into the stock market and will be managed on a daily basis, reacting to market fluctuations;

(2)    cash is invested in deposit bond accounts with various institutions at a level that doesn’t exceed the Financial Services Compensation Scheme, currently £85,000 per institution.

One of the most significant responsibilities of a Property and Affairs Deputy is to seek relevant and accurate professional advice when required. Investments are complex, particularly in the current uncertain economic climate, so choosing the right strategy at an early stage will have a significant impact on the longevity and potential growth in P’s capital.

Clarke Willmott partners Anthony Fairweather, Martin Pettingell and Elizabeth Smithers are based in our Bristol office and act as Professional Deputies for more than 50 clients. Anthony Fairweather is a panel deputy at the Court of Protection.

…to be continued.

Appointing a Court of Protection deputy

I act as a Court of Protection deputy for many individuals who need help in managing their financial affairs.  It can be a long and confusing process making an application to appoint a deputy and a solicitor or family member needs to complete a large number forms.

There are three key pieces of information the applicant will require:

  1. Family members – the forms require the applicant to complete the details of the Patient’s family including their addresses
  2. Medical report – a particular form needs to be completed by a doctor or social worker confirming to the court of protection that the Patient has lost capacity
  3. Assets and possessions – a full itemised list including bank accounts, property, shares, policies etc needs to be completed.

Once all the forms have been completed they need to be sent to the court of protection whereupon a Judge will consider the request to appoint the deputy.  At that stage the application documentation is sent out to family and possibly friends.

What if any of them disagree?  For instance, there can be arguments over who should be the court of the protection deputy?   Should it be the applicant or another family member? Are there issues over whether the Patient does or does not have capacity?

If there are contentious issues then, at that stage, the Judge is likely to ask for a hearing to take place to decide on the best course of action.  It will be for the Judge to decide.  The Judge may suggest that the parties mediate to try and find a solution.  As a panel deputy of the Court of Protection there are situations where I will be invited to act as Deputy as an independent third party.

The most important thing to remember is that it takes time to complete the forms and have the matter decided.  If no hearing is needed it can take at least 8-12 weeks even in situations when a family may wish to take urgent steps.

If you would like any help or advice about appointing a Court of Protection deputy please contact me or a member of our Court of Protection team.

Care costs: NHS Funded Nursing Care

A professional deputy appointed by the Court of Protection has a duty to ensure that elderly patients who are living in care homes or nursing homes receive adequate care support and pay the right amount of care fees.

Funding through NHS Funded Nursing Care can be easily overlooked, but it may be available, whether you are self-funding and paying full rate care fees, or if the local authority is funding your care and you are paying the service user contribution.

If you are living in a care home or nursing home and receive care provided by a registered nurse, you may be entitled to the NHS Funded Nursing Care.

People should receive Funded Nursing Care payment if they live in a care home or nursing home registered to provide nursing care and are assessed as having healthcare or nursing needs,  but  do not qualify for NHS Continuing Healthcare. An assessment is usually carried out for Continuing Healthcare before Funded Nursing Care is determined, so it is not usually necessary to have a separate assessment for Funded Nursing Care. It is certainly worth asking for an assessment for Funded Nursing Care if you require nursing care, even if you think Continuing Healthcare will not be available.

The current standard rate for Funded Nursing Care is £109.94 per week. It is paid direct to the care home or nursing home, so the care home fees that you pay should reflect the deduction of the Funded Nursing Care. The Funded Nursing Care payment can be backdated to the first date when you received the nursing care, i.e. the date when you moved into the care home or nursing home. It does not matter if you have forgotten to claim your Funded Nursing Care payment after you have been in a care home for a while. Once you have been assessed to be qualified for Funded Nursing Care, arrears will be paid to the care home from the moment when you qualified.

To ensure that you are paying the correct amount of care home fees, discuss the matter with your care home manager and ensure that an assessment has been completed to determine whether you are qualified for the Funded Nursing Care.

Further details can be found on the NHS’s website: www.nhs.uk, or if you would like to discuss funding, or appealing an assessment, please contact a member of our Elderly Care team.

Court of Protection: the Supreme Court’s test for Deprivation of Liberty

At last we have the Supreme Court judgment in the ‘deprivation of liberty’ cases of P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) and P and Q (by their litigation friend the Official Solicitor) v Surrey County Council (Respondent) and it was certainly worth the wait. Lady Justice Hale gave the lead judgment and it is clear and accessible.  She affirms ‘The whole point about human rights is their universal character’ and that the European Conventions are ‘premised on the inherent dignity of all human beings whatever their frailty or flaws’.  She goes on to say ‘Far from disability entitling the state to deny such people (those with disabilities) human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities’.

In both cases the Supreme Court rejected the ‘relative normality’ approach of the Court of Appeal. They concluded unanimously in Cheshire West that P (who lived in supervised accommodation arranged by the local authority) was deprived of his liberty. The decision in P and Q v Surrey County Council was more contentious but the majority decision was that both sisters P (who lived with her foster parents) and Q (who lived in a registered care home) were being deprived of their liberty. Having regard to the quality of accommodation and care, Lady Justice Hale said ‘We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty’.

Following a very helpful potted history of the ‘deprivation of liberty’ principles that have come out of Strasbourg Lady Justice Hale asked ‘what is the essential character of a deprivation of liberty?’ The Supreme Court  concluded that ‘the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty.  In the words of Lady Justice Hale ‘A gilded cage is still a cage.’

In her evidence to the House of Lords Select Committee solicitor Nicola Mackintosh said that she thought ‘tens of thousands’ of people who lacked capacity were deprived of their liberty and were being unlawfully deprived because of the failure of local authorities to comply with the requirements of the Mental Capacity Act 2005 (MCA) and apply the Deprivation of Liberty Safeguards (DOLS) or apply to the court for authorisation.  The vast majority of these ‘tens of thousands’ will be elderly people who no longer have the capacity to decide where they should live or the care and treatment that they need and have been moved from their own homes into residential care, often as a result of a decision by social services. Many, almost certainly the vast majority, will be compliant with the arrangements that are made for them and will not complain even though these arrangements may mean that they are under ‘continuous supervision and control (of care home staff) and lack the freedom to leave (if they tried they would be stopped or brought back) and as such, in the conclusion of the Supreme Court, they are being deprived of their liberty.

As Lady Justice Hale said, it is not nice and feels uncomfortable to think that we, as family members or as social workers or other professionals, may be making arrangements that constitute a deprivation of liberty, even for the best of reasons and intentions.  To protect our frail and most vulnerable in society arrangements that result in ‘continuous supervision and control’ with a lack of freedom to leave will often be necessary and in a person’s best interests. That is why it is so important that local authorities (the Supervisory Body) comply with the requirements of the MCA and ensure that the DOLS are properly applied, even to the compliant and those who do not complain.  Care homes too, as the Managing Authority under the DOLS regime, also need to be far more proactive in recognising when a resident is being deprived of his or her liberty  and apply for the necessary DOLS Authorisation.  The Care Quality Commission needs to step up to the mark too:  when they are inspecting residential and nursing homes, they should consider whether the Deprivation of Liberty Safeguard Authorisations are being appropriately applied.  And of course, whether there is a DOLS authorisation in place or not, if there is any dispute about the care arrangements (whether with P or his or her family) then the matter must be brought before the court as quickly as possible.

I agree wholeheartedly with the House of Lords’ recommendation that the DOLS measures in the Act should be repealed and replaced with measures that are clearer and in keeping with the principles of the MCA. But perhaps in the meantime, if the DOL Safeguards were applied positively and as a matter of routine, rather than exceptionally as they presently are, they would lose their stigma.  Our most vulnerable citizens would then have their rights – including their right to liberty – lawfully protected.

For further information about mental capacity or health and social care law, please contact Joanna Burton.

House of Lords Report on the Mental Capacity Act 2005: Regionalisation and Transparency in the Court of Protection

The House of Lords’ Post Legislative Scrutiny report on the Mental Capacity Act 2005 (“MCA”) concluded that the MCA is “failing.”

Much of the evidence heard by the Lords and the resulting discussions focus on the impact of serious difficulties in the application of the MCA’s principles in welfare matters and the controversial Deprivation of Liberty Safeguards.  For analysis of the welfare aspects of the House of Lords’ Report please see Jess Flanagan’s recent blogs: What it means for my clients and Deprivation of Liberty Standards.

The Lords also heard evidence about the “run of the mill” property and affairs applications dealt with by the Court of Protection – these are the 22,000 non-contentious matters that make up 90% of the Court’s work.

Mr Justice Charles told the Lords that the high profile Court of Protection welfare should not be “the tail that wags the dog.”  So what conclusions did they draw about how the Court is coping with its workload and how can things be improved?

The Court of Protection: “Remote, inaccessible and not well understood.”

Where someone lacks capacity to manage their finances and there is no Lasting Power of Attorney or Enduring Power of Attorney, an application may be needed to the Court of Protection to allow assets to be dealt with, a property sold or a Deputy for Property and Affairs to be appointed.

The Lords heard evidence that the Court of Protection is considered “remote, inaccessible and not well understood” by the public.

Concerns were also raised about the costs of accessing the Court of Protection.  Moira Fraser from the Carers’ Trust said that an application to the Court of Protection can sometimes be “a sledgehammer approach for comparatively small amounts of money.”  Is it fair that the costs of an application should come out of the assets of the person who lacks capacity, when they have not initiated the proceedings?

Workload – Authorised Officers and Regionalisation

District Judge Batten told the Lords that the Court of Protection’s workload had increased from 19,528 applications in 2009 to 24,586 in 2012 – an increase of 25%.  At the same time, the Court’s staffing has been cut by 30%.  Despite this, and although not all targets are met, Judge Batten said that there had been an improvement in performance.

It is clear, however, that there is a considerable strain on processing applications in the Court of Protection, even for routine property and affairs applications.

Following recent recommendations, it was decided that “authorised officers” could draft routine property and affairs orders to ease the workload of the judges.  The authorised officers are not judicially qualified but they have many years’ experience of working in the Court of Protection.  There are, however, only four authorised officers for routine Property and Affairs matters and when their workload is too high, the bottleneck is currently relieved by District Judges stepping in.  This is clearly not a cost effective or proportionate way of dealing with the problem.

The House of Lords recommended, after hearing this evidence, that the Government should increase the number of authorised officers and update the Court of Protection Rules, which have not been updated since 2007.

However, the Rt Honourable Sir James Munby (President of the Court of Protection) and Mr Justice Charles gave evidence to the Justice Committee on 18 March 2014, shortly after the publication of the House of Lords’ report, suggesting that they did not think more nominated offers were needed. They did not think there was much more that authorised officers could or should be doing – the issue for them was that effective use was not being made of judges in the regional courts.  Their view was that regionalisation of the Court of Protection will make a significant difference to the efficiency of the court, particularly in dealing with contentious matters.  The judges suggested that significant reforms are afoot that should improve the use of regional Courts and ensure that people have access to a court that is close to them.

Transparency – “the best disinfectant against abuse by people in power”

Mr Justice Charles said that there was a need for greater openness in the Court of Protection in the interest of transparent justice.  This needs to be balanced against the need to protect the privacy of the individuals involved in these sensitive cases.

Lord McNally said that “transparency is the best disinfectant against abuse by people in power” and it improves the performance of all of those involved in the court process.  Sir James Munby’s practice guidance regarding property and affairs judgments, which has been operative since February 2014, has led to the increased publication of these cases. Judges must now publish certain judgments if they think it is in the public interest to do so and they no longer have to wait to be asked by the media or one of the parties. This brings the rules on publication of property and affairs judgments more in line with welfare judgments, but it remains to be seen whether the judges’ duty to publish more cases will result in further delays in the Court.

The cost of transcription will usually come out of the public purse, but the Lords considered that the reputation of the Court of Protection should improve by the more frequent publication of judgments.  They also responded to concerns that the Court needed to have a greater say in what information is provided on the www.gov.uk website because the staff and judiciary of the Court were best placed to determine this.

Mediation

The Lords said that the Office of the Public Guardian (OPG) was in a good position to be able to offer a mediation service for LPA attorneys or deputies.  The OPG is running a pilot scheme offering mediation by telephone.  Mediation should comply with the MCA2005 principles to make sure that P’s views and wishes are adequately represented.

The Lords felt that mediation is not used enough and recommended that consideration should be given as to whether mediation should be a prerequisite for starting proceedings in the Court of Protection where matters are contentious.  This is particularly important in property and affairs matters because the general rule is that the costs are payable from P’s estate (but see, e.g. Re JS v KB & MP for an example of a departure from that general rule).

Sir James Munby and Mr Justice Charles’s were sceptical about whether mediation would work in Court of Protection matters.  Sir James Munby said:

“Whatever our professional backgrounds, anybody who has ever had to deal with financial disputes between members of families knows from experience that they are some of the most bitter the courts ever have to deal with. My suspicion, based upon 40 years’ exposure to such litigation on various fronts and in various contexts, is that mediation is unlikely to be very effective in many of those cases.”

Lasting Powers of Attorney- “fewer people with dementia have powers of attorney in place than could benefit from them.”

The Lords heard evidence that LPAs were underused and not widely known, that access to good quality information was not always readily available and that the banking sector had a very poor understanding of LPAs.

Age UK said that putting an LPA in place was a “taboo subject” for many families and the Alzheimers Society said that “fewer people with dementia have powers of attorney in place than could benefit from them.”

These organisations and the OPG have issued new guidance and are now working with the British Bankers Association and Building Societies Association.

The OPG said it was likely to hit 300,000 LPA registrations in this financial year.  The take up has grown significantly year on year, but clearly there is still work to be done in the arena of public awareness.

Financial Abuse

Senior Judge Lush told the House of Lords that he dealt with a steady stream of financial abuse cases in the Court of Protection, where attorneys and deputies showed a lack of knowledge of the Mental Capacity Act Code of Practice.  He said: “Most attorneys and deputies are unaware that it exists…almost none of them are interested.” Better levels of awareness are crucial to ensure compliance with the MCA and its Code of Practice.

Figures from the Court of Protection suggest there are around 48,000 appointed Deputies for Property and Affairs and around 880,000 LPAs have been registered with the OPG.  Last financial year, the Office of the Public Guardian investigated 718 suspected cases of financial abuse.  Senior Judge Lush expressed dismay at the extent of financial abuse matters, especially those involving close family members.

Solicitors for the Elderly said that they were concerned that if the process of making an LPA was made easier, this could result in more cases of abuse.

Conclusion

Anyone who has made an application to the Court of Protection has known for some time that the Court’s workload is high and staffing never seems to be adequate. This is confirmed by the House of Lords’ conclusions, but we wait to see whether resources are made available to relieve the pressure.

In the recent one off session of the Justice Select Committee, Judges Munby and Charles indicated that important changes were on the way to ensure that regionalisation of the Court can be progressed.  This will enable more cases to be heard by judges in cities other than London.  Further news on this key development is awaited and we hope it will result in greater efficiency in the handling of Court of Protection cases.

Greater transparency in the workings of the “secret court” is to be welcomed to dispel some of the myths perpetuated by the media and improve public awareness of the Court’s role.  Lawyers also have a role to play in transparency, see e.g. barrister Alex Ruck-Keene’s new website: Mental Capacity Law and Policy and our Clarke Willmott blogs and twitter account (@CWCoP) for updates on Court of Protection cases and developments in mental capacity law.

The full report of the House of Lords can be read here.

For assistance with property and affairs applications to the Court of Protection, please contact Alison Lamont or Anthony Fairweather.

 

Court of Protection authorises interest free loan and annual gift to parents of P to purchase and adapt property in Pakistan for his benefit.

Another Court of Protection gifting case has been published, which illustrates the protective and creative approach the judge can take in determining what is in P’s best interests.

The Deputy’s Application 

In Lomas (Deputy) v AK Judge Lush had to decide whether to allow a gift of £150,000 to be made from a young boy’s settlement money to his parents.  The purpose of the gift was to allow the parents to purchase a property for their son (“AK”) in Pakistan and deal with the contractors on site to ensure that it was adapted to meet his needs.  The family spent part of each year in the UK and part in Pakistan, as AK benefitted from the climate and there were many more family members to assist with his care.

The Deputy felt that a gift would be the most practical and cost effective way of allowing the works to proceed.  If the Deputy had to obtain receipts for all the works and liaise with contractors, this would increase costs for AK, especially as the receipts would have to be translated.

The Official Solicitor’s View

The Official Solicitor was appointed to look at things from AK’s point of view, as is usually the case in statutory gift applications.  Counsel for the Official Solicitor was not satisfied that the Deputy had considered all the investment options that could be available for AK.  The Official Solicitor thought it would be preferable for the Deputy to purchase the land on behalf of AK or somehow acquire an interest in the land. That would protect AK better.

If this was not reasonably practicable, then the authorisation of a gift could be considered.  The Official Solicitor thought a gift should only be authorised if the Deputy had an assurance from the parents that the funds were to be used within a certain timeframe for the purpose of constructing and adapting the property for AK’s benefit.  If further time was needed, this could be extended by agreement.

The judgment

Judge Lush reiterated the law relating to statutory gifts and referred to the Deputy’s limited authority to make gifts as set out in the Deputyship Order.  The Deputyship Order only gives the Deputy authority to make gifts in line with those that attorneys can make under a Lasting Power of Attorney or Enduring Power of Attorney (see e.g.  Re GM): . Anything over and above this limited authority requires an application to the Court of Protection for approval.

The judge adopted the “balance sheet” approach in weighing up the pros and cons of making the gift of £150,000.

Instead of making an outright gift, the judge authorised an interest free loan to the parents of £150,000, to be repaid by 10 yearly payments of £15,000.  One of the advantages of allowing a loan rather than a gift was that the parents were more likely to comply with the purpose for which the loan was made, due to the duty to make repayments.  Also, AK would retain the capital in his estate.  The Deputy was asked to draw up an appropriate loan agreement and the parents were advised to take separate legal advice on this.

Judge Lush further allowed the Deputy to make annual gifts of £15,000 to AK’s parents (provided that AK had enough surplus income to make these payments) to allow them to repay the loan.  He considered that these annual gifts would comply with Section 21 of the Inheritance Tax Act 1984 because they would be made:

(a)   as part of AK’s normal expenditure (he would need to pay for his accommodation and its adaptation in any event);

(b)   out of his income; and

(c)   he would be left with enough income to maintain his usual standard of living.

Judge Lush distinguished this case from an earlier judgment (Re JDS: KGS v JDS [2012]) where an application for a gift from a young man’s estate to his parents was not allowed because the purpose of the gift (inheritance tax planning) was not a purpose for which his award (clinical negligence damages) was intended.  In AK’s case, the principal purpose was not inheritance planning but rather to ensure that suitable arrangements were made to allow AK’s funds to be invested in a property.

Comment

This is another pragmatic and very creative judgment from Judge Lush, which shows that in some cases the Court of Protection will consider authorising a loan to family members from the protected party’s funds.  This is by no means a certainty, however, as the earlier case of Re JDS: KGS v JDS [2012] demonstrates. It is clear that the purpose of the loan is key, as well as P’s personal circumstances, including life expectancy, the level of P’s income and the assurance that the loan can be repaid.

For further advice on gifting applications in the Court of Protection please contact Alison Lamont or Anthony Fairweather.

 

HoL Recommendations: The Deprivation of Liberty Safeguards

In their report on the Mental Capacity Act the House of Lords address the current deficiencies in the procedure of the Deprivation of Liberty Safeguards (DoLS) and make recommendations for their improvement.

Again, I look at the recommendation from the point of view of my clients, how I advise them and the potential impact on them if implemented.

Concerns and criticisms of the current framework

The Lords heard a lot of criticism about the use of the DoLS in practice and were concerned that ‘there is a very real risk that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended, and leaving care providers vulnerable to legal challenge.’

I frequently see poor mental capacity assessments used to authorise someone being deprived of their liberty. Some of my clients, for various reasons, will not speak freely to those who they consider to have incarcerated them. As a result, the assessor often feels that they have no option but to go on previous assessments and (because the overwhelming professional opinion is that it is in P’s best interests to be in that position) concludes that P lacks capacity to make accommodation and treatment decisions.

On a strict application of the Act, its Principles and the test for assessing capacity, I cannot see that this is lawful; it potentially falls foul of the requirement not to establish a lack of capacity by reference to an aspect of his behaviour which might lead others to make unjustified assumptions about his capacity. Sadly, this strikes me as adopting an outcome based approached, as opposed to applying the “capacity test first, best interests second” approach set out in the Act.

In every situation, but perhaps fundamentally in situations where an individual’s liberty is at stake, the mental capacity assessments should be water tight and strictly follow the test set out in the Act in accordance with the Principles.

Simplifying is empowering

Having listened to the Supreme Court judgment in Cheshire West handed down this week (a post will follow specifically on that) I was encouraged to hear Lady Hale remind the world that those with an intellectual disability have the same human rights as everyone. The judgment has a theme of empowerment and recognition of human rights, but acknowledges the requirement for the Safeguards.

I therefore have a feeling that the judgment was delayed so that the Supreme Court judges could consider the report of their fellow Lords. In re-defining the legal test for deprivation of liberty to a definition that will encompass more adults, not fewer, this fits squarely within the recommendations made by the Lords in the Report.

The Lords are not recommending a statutory definition of the test, but they have called for replacement legislative process and forms ‘to be drafted in clear and simple terms, to ensure that they can be understood and applied effectively by professionals, individuals, families and carers.’

I go back to my clients. Some of them do have a limited ability to try to understand why they have been deprived of their liberty. They are often given the Best Interests assessment and the Standard Authorisation, but no explanation as to what they mean. At that point, I don’t need to be explaining the finer detail of any definition of whether they are, in law, deprived of their liberty. They are usually so very far past that difficult ‘fine line’ that the Supreme Court has had to deal with recently, that this is not an issue.

Instead, I advise on the procedure, the separate qualifying criteria and what it means for them. I choose my words very carefully so that I don’t add further distress or patronise them. I don’t want to make them feel like they have done something wrong, or are thought to be mentally ill, stupid or ‘crazy’ (a word clients often use when describing how professionals make them feel). It is not easy to get such a convoluted message across so I endorse the Lords’ recommendation and also suggest that work is done to put this into easy read versions, and give more resources to institutions and advocates to go through the framework with the individual deprived of his liberty.

Delays in challenging – more advice problems

If a client has had previous contact with the Mental Health system (as I am finding more frequently they have), they will be accustomed to being in a tribunal quite quickly, with reports prepared and ready for challenge. The difficulty then is trying to explain that it might take some time for the court to order a report, consider the report and then make a decision, but that sometimes the parties might agree and it might not take as long. For someone who is confined within the same four walls every day, this isn’t particularly helpful. It just feeds the uncertainty and causes more distress. I want to be clear and certain with my clients as they are frequently unable to understand even the simplest of matters.

The Lords rejected the request for a Mental Capacity Act Tribunal on the evidence presented to it that it would not add much and may remove the current expertise of those advising on and deciding the cases. Instead it recommends improved systems in the Court of Protection to address concerns of delays and inefficacy. I have not quite made my mind up on this, and wonder whether the Statutory Body could have some initial independent review function, before or at the same time that the application to the court is made pursuant to what is currently s21A of the Act.

Final Comments

I really want to see what the comprehensive review comes up with. It should ensure that the Principles of the Act are at the heart of it, with simpler forms, simpler processes and better education so that the assessments are of a higher and more accurate quality. That would be a start, but the devil will be in the detail.

House of Lords report on the Mental Capacity Act 2005: What it means for my clients

Last week the House of Lords Select Committee on the Mental Capacity Act 2005 published its eagerly anticipated report on the Act. Having considered the recommendations, I am extremely hopeful that, if adopted, the Act will go from strength to strength.

The Lords identified that the Mental Capacity Act (the Act) has suffered from a lack of awareness and a lack of understanding.” As a solicitor specialising in litigation in the Court of Protection I usually become involved when things have gone wrong.  Time and again I see individuals being assessed as lacking mental capacity because they want to do something that their assessor of capacity sees as unwise. Far from empowering individuals to make their own decisions, the Lords have seen evidence that health and social care persists in being paternalistic and risk-averse.

Sadly, for some, having to wait for a judge in the Court of Protection to ‘right the wrong’ will be too late. In one of my current cases, a life might be saved if professionals use the test for capacity correctly (rather than basing a finding of incapacity on historical assessments and P’s attitude to professionals).  If someone who believes they have capacity is assessed as lacking capacity and the power for them to make decisions about the way they live their life is removed, this can be devastating in a way that many of us will never experience.

So as I read the recommendations I decided to comment on it from that point of view. A quick read of the report is enlightening and if we hold the Government to implement these really practical changes, our world will change and so will the lives of so many vulnerable adults.

How is that going to happen?  I want to get to the specifics in a more detailed post (which will be published in full on my personal blog site) but for now, the recommendations shed some really rosy light on how the future could look for my clients if implemented.

Some really great recommendations have been made, such as putting in place an independent body as overseer for the Act; a steering group; giving the CQC a mandate to seek compliance with the Act (last year the CQC employed an MCA specialist, so it is in a good position to do this); educating professionals, carers, families and people affected; and better provision of relevant and timely information about the rapid changes in the law. These are all heart warming and well intentioned.

But what recommendations are going to make a difference for my client who has been disempowered and incarcerated? I have a feeling that Justice may come too late for him and he may give up before the matter can come properly before a judge; but for thousands like him, how can they be helped?

My favourite part of the report is the suggestion to rip up the current legislation relating to Deprivation of Liberty Safeguards.

There was a finding that: ‘the provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented.’

If you can, imagine me in a small room, with a middle aged man who doesn’t want to be where he is and doesn’t understand why he is there.  It is my job to explain to him in a way he understands that two assessors have formed the view that he lacks capacity to make decisions relating to where he should be accommodated for care and treatment (which he doesn’t want), and that it is (in their opinion) in his best interests to be where he is.  In addition, because he isn’t eligible to be detained under the Mental Health Act, he can’t access the Tribunal service, which he is more used to. He stopped listening when I said “assessors”.

This is complicated stuff and impossible for people confined against their will for doing absolutely nothing wrong. So I welcome the Lords’ suggestion that we need to start again with this and that the “replacement legislative provisions extend to those accommodated in supported living arrangements.’ This is exciting for all of us who have been crying out for this and I would like to look at their recommendations for changing the regime in more detail another time.

Another great idea is the recommendation to establish a form of self-referral for Independent Mental Capacity Advocate (IMCA) services, to support P’s access to legal representation and challenge the fact that they have been deprived of their liberty in the Court of Protection.

This is intended to prevent the types of delay that have had damaging consequences in the past and would have helped my client avoid his current distress. I really welcome the idea that a family member or individual affected by the Act could self refer to obtain an IMCA. Anyone who has heard me speak about the MCA knows that I have high praise for IMCAs and the Lords have echoed the regard held by so many practitioners. We need more of them and I believe that their timely intervention will avoid unnecessary and costly litigation.

Legal aid is currently available on a non means tested basis for clients who are subject to a Standard Authorisation (SA) and want to challenge the SA in the Court of Protection.  But thousands of people are deprived of their liberty without the protection of a Standard Authorisation and can’t access non means tested legal aid to challenge it. I’ve never understood that.

To end these inconsistencies the Lords recommend that the Government should consider whether some cases merit the same unconditional support as is currently afforded to medical treatment decisions; and review the policy underlying the availability of legal aid for those who lack the mental capacity to litigate and therefore cannot represent themselves.

It is encouraging that the Lords are actively seeking a remedy, but if P cannot access funding it is ridiculous to say that they will be protected by the court. Having read the Government’s proposals for transforming Legal Aid, and as cases with borderline prospects of success have already been removed from scope, I hold out little hope for the extra funding required.  I have referred to that in a previous article (published in the ELJ).

This has been a whistle stop tour of the recommendations that would help the people I try to support. Even better are the recommendations that will support those who haven’t even got close to accessing legal support.

To be continued…

Court of Protection: adults, incapacity and their personal lives

The Court of Protection has been making decisions about people’s personal lives since the introduction of the Mental Capacity Act 2005 (the Act) in October 2007. When it comes to health and welfare decisions, the most personal and private decisions that we make are in relation to relationships and importantly, sex and marriage.

If someone lacks capacity (on the legal test) to consent to sexual relations, or to marry, then the Act says that no one can make that decision on their behalf and the normal best interests analysis doesn’t apply. So a finding of incapacity for those decisions will have very limiting consequences for the individual. As discussed in a previous article, when someone lacks capacity to consent to sex, any sexual acts towards them will be a criminal offence and the measures that are put in place to protect them from being the victim of a crime are likely to restrict what an individual can do even further.

Because of the recent and interesting decisions of the Court of Appeal in IM v LM & Ors [2014] EWCA Civ 37  and PC, NC and City of York Council [2013] EWCA Civ 478 and the very nature of the court’s involvement in an individual’s personal life, I ran some training sessions dealing with these issues.

The events were held in Southampton and Bristol and were very well attended by representatives from independent advocacy organisations, charities, disability organisations and local law firms. The level of contribution was incredible.

Our first speaker concentrated on the legal tests that judges say should be applied when assessing an individual’s capacity to consent to sexual relations and marriage. I have written on the topic of sex and marriage in two previous posts and the current tests are referred to in the post about capacity to consent to sex. The bar is pretty low; lower for marriage than sex and all you need to understand to have capacity to consent to sex is the mechanics of the act and the reasonably foreseeable consequences of sex (ie pregnancy and sexually transmitted diseases).

The tests applied are act specific, not person specific. All speakers on this topic suggested (and our delegates appeared to agree) that there really is nothing so personal as the decision to consent to sexual relations with a specific person and when it comes to marriage, don’t we all decide to marry  the person, not that we are going to get married? The IM v LM case is likely to go for a decision in the Supreme Court where Baroness Hale sits as a judge. Given her opinion that ‘it is difficult to think of an activity which is more person- and situation-specific than sexual relations’ perhaps the test may become person, rather than act specific.

Should the test become person specific, the concern may be that, when professionals are faced with an individual who wants to engage in sexual relations and it is not considered to be in their best interests, would they have to carry out assessments of each and every individual they come into contact with? To avoid treating disabled individuals as any different to those without an intellectual disability, the answer should probably be yes. We await the decision of the Supreme Court to see whether the ‘pragmatic’ basis for assessing capacity on a general and non specific basis (paragraph 77 of IM v LM) will be overturned in favour of a regime that may be more labour intensive, but with more respect for an individual’s right to private and family rights.

The current state of play doesn’t answer all questions raised by advocates at the training. Given the low bar for assessing capacity to consent to sexual relations and the act specific nature of the test, how can an individual with an intellectual disability who has capacity to consent to sex generally be protected from intercourse with a sibling or parent?

The answer really came from Joanna Burton, who spoke about relationships in the context of Court of Protection applications and the Mental Capacity Act. Joanna considered that on a practical level, one should look at the individual’s capacity to have contact with her sibling or parent and if she was found to be lacking, then look at whether contact was in her best interests, whether it should be restricted, on what basis and in what way.. One must not forget the presumption of capacity set out in the Act, but in the event that our individual with an intellectual disability is assessed as lacking capacity to have contact with that person (which would be quite likely, given that capacity to have contact with another individual is a higher bar), a regime could be put in place in her best interests and provide the protection she may require to avoid engaging in sexual relations of an unlawful nature (which she may not understand to be unlawful).

Joanna also spoke about the difficult family member, and how in her experience as a Local Authority solicitor, she has managed many difficult individuals without the need to go to court, by just sitting down and listening to them. The Mental Capacity Act promotes collaborative decision making on behalf of an incapacitated individual and for many situations, going through the options in a calm manner is all it takes to reach a solution that is agreeable to all and in P’s best interests.

Collaboration was also the theme of District Judge Ralton’s entertaining presentation to the delegates in Bristol. He explained that while the nature of our common law approach to managing finances lends itself to one individual being appointed to manage another’s financial affairs when they are incapable of doing so themselves, this is not true of health and welfare decisions. When it comes to welfare decisions ranging from deciding when to get up in the morning, deciding when to clean your teeth, all the way to where you should live and with whom to have contact, if someone lacks the capacity to make any, or all of those decisions, the Act prefers collaborative decision making. To appoint one individual as sole decision maker for all health and welfare decisions would considerably restrict the person who lacks capacity and could result in them leading a life not of their choosing, but that of the decision maker. District Judge Ralton’s message was clear: decision making should be collaborative and not prescriptive.

At both training sessions I discussed the practicalities of acting as a litigation friend for P. I am aware that the barrister Alex Ruck-Keene has been commissioned to draft some guidance for individuals (other than the Official Solicitor) who are taking on that role, and this is eagerly awaited. District Judge Sparrow, after sharing his experiences of Court of Protection matters (having 70 cases over the past four years, in a part time role), again reminded the group that agreement is far better than contested proceedings.

Thank you to all who spoke and to all who contributed to the days. We hope you all found it as interesting and informative as we did. For further information about any of the issues raised, please get in touch with Jess Flanagan or Joanna Burton.