Craig Ward Author and Solicitor

1. Mental Capacity and Human Rights 12th January 2012 DZN/LATA - 0.5 Hour CPD Craig Ward Author and Solicitor

2. Craig Ward, Solicitor Author Lasting Powers of Attorney: A Practical Guide (2nd Edition) 2011 The Law Society Solicitor, Mediator and Trainer Member of Solicitors For the Elderly and the British Psychological Society craig@lawtalks.co.uk07943 160955 (UK)

3. Mental Capacity

4. Presumptions and Questions Section 1(2) MCA Sections 2 and 3 MCA Confirming Mental Capacity Re K Re F [1988] 1 All ER 358 Re W [2001] 2WLR

5. Thorpe v Fellowes Solicitors LLP [2011] EWHC 61 (QB) ‘A solicitor is generally only required to make inquiries as to a person’s capacity to contract if there are circumstances such as to raise to doubt as to this in the mind of a reasonably competent practitioner…’ ‘I should add (since at least part of the Claimant's case seemed to have suggested, at least implicitly, that this was the case) that there is plainly no duty upon solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lack capacity. Such a requirement would be insulting and unnecessary.’

6. Mental capacity issues Section 1(2) MCA 2005 - legal presumption of capacity Tests - Legal tests based upon case law, functional approach, MHA 1983 def of being a patient, specific to the matter and time Assessments - different professionals may reach alternative conclusions Expert evidence and family evidence can differ Medical medical profession with diagnosis and prognosis more than severity or implications of actions Solicitors assessment - depends upon the nature of the action, need to gather evidence from professionals and family then form a view on legal capacity

7. WHAT IS MEMORY Encoding Storage Retrieval Memory storage STM: less than two minutes or seven items plus or minus 2 LTM: of unlimited capacity storing over long periods of time

8. Assessing Mental Capacity Presumption of Capacity Two-stage test of Mental Capacity (S 2&3 MCA) S2 Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain S3 If so, is the impairment or disturbance sufficient to cause the person to be unable to make that particular decision at the relevant time If not should the decision be made by someone else in their best interests

9. CONFIRMING MENTAL CAPACITY • Cognition - decision making • Orientation - time, place and person • Memory - STM/LTM different types of domains

10. COGNITIVE - DECISION MAKING What is an LPA Why are you (am I) here How did you (I) get here What is your name, date of birth, address How old are you What is today’s date, month, time of day Who are these people you have brought with you How long have you known them Why are they here If I gave you £20.00 what could you buy

11. Restraint

12. LAWFUL RESTRAINT • Restraint is where someone • uses, or threatens to use, force to secure the doing of an act which P resists, or • (b) restricts P’s liberty of movement, whether or not P resists. • MCA 2005, s.6(4)

13. LAWFUL RESTRAINT Protection from liability MCA 2005, s.6(2) & (3) (2) The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P. (3) The second is that the act is a proportionate response to- (a) the likelihood of P's suffering harm, and (b) the seriousness of that harm.

14. LAWFUL RESTRAINT MCA Code of Practice at 6.41 Any action intended to restrain a person who lacks capacity will not attract protection from liability unless the following two conditions are met; the person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity, and the amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of harm.

15. Deprivation of Liberty

16. RESTRAINT INTO DEPRIVATION DOLS CP 2.12 talks of restraint being“...frequent, cumulative and ongoing...”Is this leading into deprivation of liberty? “An occasional restraint if continued over a period of time, may culminate in deprivation, lawful or otherwise. If amounts to more than just restraint has it become deprivation.”

17. DEPRIVING ‘P’ DOLS 1.13 - P is deprived of liberty where It is in their best interests It is proportionate to the likelihood and seriousness of harm It is the least restrictive option If an Lasting Power of Attorney (LPA), a Deputy valid Advance Decision, these must be followed, even if refusing that type of accommodation or treatment.

18. Challenging Authorisation • Court of Protection involvement Post Deprivation • Applications by: • LPA • Deputy • Applications made before authorisation • Determine capacity issues • Certain acts lawful • Reviews • Other relevant issues

19. Deciding on Behalf of Others

20. Deciding on Behalf of Others • Lasting Powers of Attorney • Deputy’s and the Court of Protection • Appointeeships (Social Security (Claims and Payments) Regulations 1987 SI 1987/1968)

21. Private International Law

22. Private International Law Hague Convention No. 35: International Protection of Adults (HC35) HC35 - recognition of EU countries management of incapacity HC35 incorporated under MCA 2005 Sched 3 s.63 MCA confirms this incorporation BUT... Signed but not Ratified in England & Wales Ratified in Scotland - can provide HC35 Art 38 certificates England & Wales cannot LPA may be recognised but Court of Protection cannot provide HC35 Art 38 certificate Re MN [2010] EWHC 1926 (Fam)

23. Thank you Any Questions