The issue of Mental Capacity is not an easy one for society to understand.
To deprive people who are capable of making their own decisions of the right to do so would be an abuse of power, however failing to recognise when a person lacks capacity results in exploiting vulnerability.
The Concise Oxford Dictionary defines a decision as ‘a conclusion or resolution reached after consideration’, and we all assume that our fellow peers are able to make their own decisions. Those who cannot do so depend upon the support of others and are vulnerable to abuse or neglect. Mental Capacity is when a person has the capability to make their own choices. As a society we must make provisions for those who are vulnerable within our legal system.
The two-stage test for mental capacity
There is a two-stage test to establish whether a person lacks mental capacity:
- It must be established that there is an impairment of, or disturbance, of the functioning of the person’s mind or brain; and
- It must be established that the impairment or disturbance is sufficient to render the person unable to make that particular decision at the relevant time.
Mental Capacity Act 2005
The five principles for establishing capacity as set out in the Mental Capacity Act are:
- A person must be assumed to have mental capacity unless it is established that they lack capacity;
- A person must not be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success;
- A person is not to be treated as unable to make a decision merely because they make an unwise decision;
- An act done/decision made, for a person who lacks mental capacity must be made in their best interests;
- Before an act/decision is made, regard must be had as to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom.
In summary, the principles above are to protect those who may lack the mental capacity to make important decisions. A decision made in line with the above must be limited to an individual decision and be time-specific. For example, a person may have capacity to make some decisions, but not others.
‘Best Interests’ checklist
Under the Mental Capacity Act, a person’s capacity to make a decision or take action must be first assessed.
‘Best interests’ only comes into play when it has been established, or there are reasonable grounds to believe, that a person lacks mental capacity.
There are a number of factors that must be taken into consideration when making this assessment:
- Equal consideration and non-discrimination
- Considering all relevant circumstances
- Regaining capacity
- Permitting and encouraging participation
- The person’s wishes, feelings, beliefs and values
Not all of the factors in the checklist will be relevant to all types of decisions or actions, but they must still be considered if only to be disregarded as irrelevant to that particular situation.
There are exceptions, however, to applying best interests:
- Where the person has made an advance decision to refuse medical treatment, which is valid and applicable to the treatment that is proposed.
- The treatment must not be given, even if others think providing the treatment is in their best interests; and
- Where the person who lacks capacity is involved in medical research.
Why is mental capacity important?
The law assumes that an adult has the capacity to make and communicate personal decisions. In a legal sense we have to establish that an adult’s choices would be recognised by the law.
When establishing whether an adult has mental capacity, we are considering their ability to understand, make a choice and then make this clear to others; even if assistance may be needed to carry the choice into effect.
If the Claimant is deemed not to have capacity, then this means that they do not have legal competence. This means that they cannot make important legal decisions.
If a person lacks mental capacity, there are steps that can be made to ensure that decisions are made in line with their wishes.
What happens when a person lacks mental capacity?
If a Claimant lacks mental capacity then Burnetts will take the following steps to ensure that the Medical Negligence or Personal Injury claim is dealt with appropriately:
- If there is any doubt regarding the Claimant’s ability to bring their own action then Burnetts will send them for a Capacity assessment, conducted by an appropriate expert (usually a Neuropsychologist or a Psychiatrist).
- If the Capacity assessment determines that the Claimant does not have mental capacity, then in personal injury and medical negligence cases Burnetts will look to appoint a ‘Litigation Friend’.
A Litigation Friend is someone who has been given permission to deal with the injured person’s claim. The Certificate of Suitability of Litigation Friend allows Burnetts to discuss the claim with the Litigation Friend and allows the appointed person to make any necessary legal decisions.
- When it comes to matters of property and affairs, Burnetts’ Court of Protection team would have a discussion with the Claimant and their family and a deputy would need to be appointed.
A deputy is someone who is appointed to manage someone’s property and affairs on a client’s behalf. This could be a family member or a professional. Burnetts’ appointed deputy is Nick Gutteridge, Managing Partner.
What is the Court of Protection?
An adult bringing a claim who lacks mental capacity will be entered into the Court of Protection. The Court of Protection in English and Welsh Law is a superior Court of record created under the Mental Capacity Act 2005. Find out more about the court of protection here.
If you are bringing a claim in Medical Negligence or Serious Injury and have concerns regarding mental capacity please contact Caroline Manningham in the Court of Protection Team on 0191 300 1833.