The Mental Capacity Act sets out various principles which govern how we should all make decisions in respect of people who cannot make decisions for themselves. The MCA also governs the jurisdiction on the Court of Protection.
The Court of Protection is there as a last resort to resolve disputes about or on behalf of people who lack capacity to make decisions for themselves.
Disputes generally concern matters related to an individual’s welfare (e.g. where they live, who they have contact with, the type of treatment or care they receive, whether they are able to marry and enter into sexual relationships) or about finance (e.g. buying, selling or renting a property, making a gift, spending money on particular goods or services). Sometimes cases involve both welfare and finance.
What are the guiding principles of the Mental Capacity Act 2005?
- Presumption of capacity – a person must be presumed to have capacity unless there is cogent evidence which establishes that they do not.
- A person must not be treated as unable to make a decision unless all reasonable practical steps to enable him to do so have been taken without success.
- A person must not be assumed to lack capacity because they seek to make an unwise decision.
- Any act done or decision made must be done or made in an incapacitated person’s best interests.
- Regard must be had to ensuring that the purpose for which any act or decision is needed is achieved in a way that is the least restrictive.
How is loss of capacity defined?
A person is considered to lack capacity in relation to a particular matter if, at the relevant time, he is unable to make a decision for himself because of an impairment of or a disturbance in the function of his mind or brain.
How is an inability to make a decision defined?
The answer is that the Act applies a very practical test which focuses on the individual’s ability to understand, remember and process relevant information, in particular the ability to ‘use or weigh information’ as part of the process of making the decision including the information needed to understand the reasonably foreseeable consequences of deciding one way or another or failing to decide.
The firm has represented family members in a number of notable cases, including:
PB v RB & Ors 
An appeal decision relating to the scope of a deputy’s power to prohibit contact between family members
A decision looking at the weight to be accorded to expert evidence in the assessment of capacity
Re G (An Adult) 
A case involving the rights of a media organisation, Associated Newspapers (publishers of the Daily Mail) to be joined as a party in proceedings
A case involving an application to challenge the local authority’s appointment as deputy
Re RS 
A decision relating to the powers of the court to order reports