12 February 2007
The Mental Capacity Act 2005 received Royal Assent on 7 April 2005, but the main elements of legislation, including the new Court of Protection, Public Guardian and Office of the Public Guardian, will not be operational until 1 October 2007. This delay from 1 April 2007 is to provide adequate time for the new court to be developed and for relevant training. The only elements that will come into force in April are the independent mental capacity advocates (IMCAs), the code of practice and the criminal offence of ill-treatment and wilful neglect.
The act forms the blueprint of how we should deal with those who are unable to make decisions for themselves because of an impairment in the functioning of their brain. The main principle is that a person is assumed to have capacity unless it is established that they lack it. They are not to be treated as unable to make a decision unless all practical steps to help them do so have been taken without success. Any decision made for someone without capacity must be done in their best interests and without restricting rights of freedom of action.
One of the most fundamental changes will be how the loss of capacity is to be assessed. It will now be both time-specific (temporary, partial or fluctuating) and decision-specific.
Therefore, someone may lack capacity for one matter but not necessarily another. Incapacity will be the inability to understand or retain information relevant to the decision, to use that information as part of the process of making the decision and the inability to communicate it. It will be a great feast for lawyers and doctors determining the diagnostic threshold, as will determining what is in a person's best interests.
The new statutory form of power of attorney will become the 'lasting power of attorney' (LPA), which will replace enduring powers of attorney (EPAs). The legal effect of EPAs already made will be preserved, and practitioners are advising that they should be made before the 1 October deadline. There will be two powers, one for property and financial affairs (like the current EPAs) and one for personal welfare and healthcare, so clients will have to make two separate applications. The most controversial aspect is the certification procedure, which is likely to be amended, as the current list of people able to certify will be open to dispute and confusion purely because the Government does not want solicitors and doctors cornering the market.
The main differences between EPAs and LPAs are that an LPA will contain the names of the people that the donor wishes to be notified of an application, and it must contain a certificate stating that the donor understands the purpose and scope of the authority under it. LPAs can be a 'joint power' in some matters and a 'joint and several power' in others, with a default position being joint. The donor can carry on making decisions provided they have the capacity to do so and the attorney can only make personal welfare decisions if the donor is incapable. Donors can apply to register the LPA themselves and an application can be made prior to incapacity. The donor's relatives will not be notified of registration unless specified.
The grounds for objection will be fraud or undue pressure on creation, the behaviour of the attorneys or acts not in the donor's best interests. The dissolution of a marriage or civil partnership will terminate the appointment of an attorney and will revoke the LPA.
There is widespread misunderstanding that deputies will simply be Court of Protection receivers with a new name. This is not the case and a decision by the court is to be preferred to the appointment of a deputy. Powers of a deputy will be limited in scope and duration and are likely to be short-term orders, although it will be different in large damages cases.
Another new provision is advance decisions ('living wills') to refuse medical treatment (but not to sustain life) if someone loses capacity in the future. They must be written, signed and witnessed and include a statement that the decision is to be applied "even if life is at risk".
A last minute amendment to the legislation is the introduction of IMCAs, who will represent the views of people who have no family or friends and who lack the capacity to consent to NHS 'serious medical treatment', or NHS or local authority accommodation. There is a lack of clarity regarding the definition of what 'serious medical treatment' means and how the service will be organised.
Guidance on the new act will be provided in codes of practice, with a duty to follow them by everyone except relatives and unpaid carers.
The existing Court of Protection is to be abolished and replaced with a new court, also known as the Court of Protection. The new court will combine the personal welfare and healthcare jurisdiction of the family division with the property and financial decision-making jurisdiction of the existing court. The judges will be nominated from various levels of the judiciary, with the current master becoming the senior judge. The court's regional presence will be limited to Birmingham, Bristol, Cardiff, Manchester, Newcastle and Preston, but may be extended if there is sufficient work elsewhere. It is still undecided whether court hearings will be made public or be held in private, as they are currently, and whether each party should bear their own costs (as in the family division), or whether they should be paid from the patient's estate (as in the Court of Protection).
The Office of the Public Guardian will replace the Public Guardianship Office and will maintain registers of LPAs and deputies. It will supervise them with Court of Protection visitors, monitor security reports and accounts, and handle complaints.
Finally, the fee structure for everything will be simplified but increased and supervision will be a 'light touch' or at a higher level where the affairs of the patient demand it.
There is therefore a significant amount of uncertainty of how the new legislation will work, with more than one area to be ironed out before October. Clients should be encouraged to make EPAs while the legislation still allows.
Suzanne Marriott is a partner at Charles Russell