A lasting legacy?

Polly Botsford explains how the mental capacity act aims to protect people with impaired capacity


Critics have compared it to a large elaborate building that is liable to collapse. The Mental Capacity Act 2005 and its accompanying 302-page Code of Practice, which came fully into force on 1 October, is certainly large, and definitely ambitious, but that does not mean it will fail.



The Act aims to protect and ‘empower’ people with impaired capacity, as well as allowing those who may lack capacity in the future to plan for this. Throughout the time it was being constructed, the original Bill caused considerable upset, particularly in relation to its ‘living will’ provisions and the new lasting powers of attorney (LPAs). So is it a bad design built on rocky foundations, or is it a new vision that will alter the skyline?



The Act was introduced in two parts. The first provisions came in from April 2007, including the five underlying principles – such as ‘a person must be assumed to have capacity unless it is established that he lacks capacity’, and ‘any decision made on behalf of a person who lacks capacity must be made in their “best interests”’ – and the legal definition of how to assess capacity (the main twist being that the Act recognises that people have different levels of capacity for different things).



The second part of the Act, which came into force this month, included some of the more controversial highlights: the LPAs, which replace enduring powers of attorney (EPAs), and the ‘advance decisions’ (what were known as living wills), alongside a new Court of Protection with a wider remit, and the new Office of the Public Guardian replacing the Public Guardianship Office.



But this list hides a deeper reality, which is that this Act represents a new codified approach to the problems of meeting the needs of people with impaired capacity, such as those with Alzheimer’s, or dementia, severe mental disabilities and acute learning difficulties. Before this Act, there was no properly defined framework for doing this.



Nicola Mackintosh, a partner at London-based mental health specialist law firm Mackintosh Duncan, explains: ‘Only their financial concerns could be considered by a court, not medical treatment, nor where they should live, nor who should care for them, contact with family members, whether they have capacity to marry, or even have sexual relations. None of these issues were covered by statute.



‘What has happened, over the last 12 or 15 years, is that the family division of the High Court has created case law to cover these areas under its inherent jurisdiction. The High Court has, in fact, coped rather well. What we have now is a new Court of Protection that will cover financial issues but also these health and welfare issues, such as residency and marriage. It is a huge change. If it works, there will be hundreds of thousands of cases decided differently, some of which will be before this new court.’



Although Richard Brook, the new Public Guardian, tells the Gazette that the Act only ‘codifies best practice’, that sounds like false modesty. ‘It’s about stripping away the stigma of dementia and other conditions. It is a huge step forward and a pivotal moment in our society,’ says a spokeswoman at the Alzheimer’s Society.



Liz Holdsworth, a member of Solicitors for the Elderly and a consultant at Shrewsbury firm Wace Morgan, sees the Act as both the result of a natural evolution from case law and good practice, but also believes it has high aims: ‘Its purpose is to allow those with impaired capacity to make their own decisions as much as possible.’



This new framework, this large and elaborate building, has some areas of intense controversy. First, the concept of an ‘advance decision’, which is a formal statement made by a person expressing their wish to refuse specific treatment in the future when they will not have the capacity to make an independent decision. During the passage of the Bill, this was depicted as euthanasia by the back door by religious groups and anti-euthanasia organisations.



Attention at the time focused on the life-sustaining treatment – that is, treatment which, if not given, is likely to lead to that person’s death. The most common example is artificial nutrition and hydration (or ANH) which involves using tubes to provide nutrition and fluids to someone who cannot take them by mouth. As the Code of Practice explains: ‘It bypasses the natural mechanisms that control hunger and thirst and requires clinical monitoring. An advance decision can refuse ANH. Refusing ANH in an advance decision is likely to result in the person’s death, if the advance decision is followed.’ In other words, by making an advance decision, a person could, as critics saw it, in particular circumstances hasten their own death.



But supporters of the Bill, particularly the Alzheimer’s Society, argued it the other way: ‘We supported advance decisions because they are giving [people who lack capacity] the same rights as people who don’t lose capacity. We are not talking about saying no to food and water, but we are saying that artificial hydration is very invasive and frightening, and these people can say no to artificial hydration.’



Similarly, the Law Society’s mental health and disability committee supported this element of the Bill on the grounds that it was putting into statutory format something which in effect existed in law anyway. ‘We were clear at the time that as long as you have clear legal safeguards around these types of powers, then there is a statutory framework to something which people have always been able to have,’ explains Law Society policy adviser Tim Spencer-Lane. He adds: ‘A living will was legally binding but no one really understood this; doctors did not understand their legality.’



What the controversy overlooked is that the Act has gone further than existing practices. It also has a mechanism called an ‘advance statement’, which allows someone to express a positive preference for certain things, such as living in a particular place, or setting specific medical treatment. As Ms Holdsworth explains: ‘The advance statement is very interesting. It allows people to express their wishes and beliefs. An attorney or a healthcare professional is not bound by it, but could only disregard something in it if they were acting in the person’s best interests in doing so.’



The other area of controversy, linked to the advance statements and decisions, is the LPA. The LPA is different from an EPA in that the powers can cover not only issues of finance, but also of health and welfare, and particularly medical treatment. In addition, a person can choose to have more than one power of attorney for different issues (one attorney to deal with finances, another to deal with welfare, for instance).



Trevor Lyttleton, a sole practitioner and founder of the Contact the Elderly scheme, is highly damning: ‘It is such a monumental amount of work. Where once you had a four-page document, now you need a 24-page form, a third party has to register [the attorney] and it is so much more complex. The end result is going to be that very few people are actually going to be prepared to get these LPAs – with disastrous consequences.’



In addition, complexity increases the cost. Though the actual fee has risen from £120 to £150, the range of options within the LPA will inevitably mean increased legal fees in setting it up. Many advisers agree with Mr Lyttleton’s prognosis, and the national press has been awash with stories of clients rushing to sign off the old-style EPAs before the 1 October deadline.



But these areas of controversy have overshadowed other potential problems with the Act. One particular area of concern is what happens in disputes over what is in ‘the best interests’ of a person with impaired capacity. Ms Mackintosh poses the question: ‘Take the case of a 40-year old woman with Down’s Syndrome and dementia, who is being cared for in her home by her parents, perhaps the local authority is concerned about the level of care, and the authority decides she should be in residential care in her best interests. If there is no agreement between the authority and the family, and the individual, on the choice of care, then the issue should go to court for it to decide.’



‘But there is nothing in the Act which says the matter must go to court or who has the responsibility for bringing it to court,’ Ms Mackintosh explains. ‘It is my view that in this situation, the statutory body with a duty of care has an obligation to place the dispute before the court so that the person can be properly represented. Even the Code of Practice, which is a really helpful document with lots of real-life scenarios, does not say who it is who is supposed to take the matter to the Court of Protection.’



A subtler issue is that of the status of the incapacitated person before the court. Ms Mackintosh continues: ‘The Court of Protection rules do not automatically assume that the incapacitated person is to be joined as a party in proceedings relating to them. There is only a discretion to have them joined. You would hope that they would be represented and in the vast majority of cases in the High Court so far they are a party, represented by the Official Solicitor. But surely there should have been something in there to ensure that the incapacitated person is always a party and properly represented before the court.’



Areas like these, which lack clarity, will pose difficulties for practitioners advising clients or acting as attorneys themselves. But there are areas of the Act where the impression among practitioners is more consensual and positive, and, for them, the Act reflects an improvement on what was there before. Among these is the new Court of Protection. Mr Spencer-Lane is cautiously optimistic: ‘We have been told that judges at the court will be trained, and one single cohort of judges will be dealing with these cases. We are reasonably happy that this will happen. But we will keep an eye on this.’



Also, the role of the Office of the Public Guardian is doing its job of promoting the Act and has done a considerable amount of work on its ‘brilliant website’, as Mr Brook describes it. It also has advisers on a helpline available to answer queries from practitioners as they grapple with the Act.



He explains what his office’s role is: ‘My office is a registration authority where lasting powers of attorney will be registered. We also supervise the work of a deputy (an attorney who is appointed by the Court of Protection, replacing the pre-Act receivers). There will be different levels of supervision, which means that some people will find there is more intervention and in other cases there will be less. For instance, if someone is taking over deputyship, and having to sell a house or get an award of negligence on behalf of a person who lacks capacity, we would supervise that very closely until funds were invested, and then perhaps there would be less intervention subsequently.’



The Mental Capacity Act 2005 is all-encompassing, and contains some controversial elements, as well as a few cracks, but that does not mean it will fall apart. Nor is the government’s work complete. In the pipeline are further changes scheduled for next year. Mr Spencer-Lane explains: ‘The Bournewood provisions will allow people to be detained in hospital or care homes if it is in their best interests to do so. It is also controversial, concerning issues of deprivation of liberty – and there will have to be an annex to the existing Code of Practice.’



It appears that mental health lawyers and practitioners, who are only just finding their way round this Act, this large and ambitious building, are already being built a loft extension.



l The Law Society’s practice note on LPA can be found at www.lawsociety.org.uk/productsandservices/practicenotes/lpa.page.

Polly Botsford is a freelance journalist





EMMA LAMPIER SAYS LPAs OFFER GREATER FLEXIBILITY AND SECURITY

More and more people plan carefully for the time when they can no longer look after their own business, or themselves. Such people deserve the respect, time and care which solicitors have traditionally accorded to conscientious testators.



Many clients will be attracted to the idea of enabling a trusted person to take decisions as to their personal welfare, especially those who are at the mercy of competing (or indifferent) family members. As well as issues of health and medical treatment, the attorney (unless restricted) is empowered to decide on living conditions, dress, diet and a range of other issues.



The attorney will be a legally sanctioned point of reference on such matters, simplifying decision-making. In medical cases, the presence of a person representing the patient may forestall the need for expensive and fraught litigation.



The second striking change brought about by the new regime is the introduction of new checks on abuse. At creation, the forms step up the protection of a donor who may be under pressure to hand over control. An independent person (the certificate provider) must privately discuss the power with the donor to ensure that he is acting of his own free will and not subject to fraud or undue pressure, and that he understands the purpose of the form and the scope of the authority given. If anyone else is present, then full details have to be included in the form (although, of course, the system is vulnerable to abuse if the certificate provider is a co-conspirator).



For the most important decisions – in the personal welfare LPA, regarding life-sustaining treatment – a witness to the donor’s decision is required; and in both forms, where no one is to be notified of the registration of the power, two certificate providers are required.



An LPA does not become operative at all until it has been registered, and the process of registration requires that notice be given to up to five persons the donor nominates on the form. The donor has a free choice of nominees, which must be an improvement on the comparable (not equivalent) provision of the EPA legislation, where notice had to be given to specified members of the family who might have been the very personalities whose interference the donor would most have wanted to avoid.



The formalities may look burdensome but contain a good deal of useful guidance. While the basic forms for the creation of LPAs do run to 24 pages, this does not necessarily make them unmanageable. Most importantly, they oblige all concerned to focus on the serious implications of what they are doing. The prescribed information which donors, attorneys and certificate providers are asked to read, contains the kind of material which conscientious practitioners have probably been providing themselves in relation to EPAs.



The expense will be greater than previously but should not be disproportionate having regard to the nature and importance of the service provided. A professional attorney’s future fees can be agreed up front, and the Mental Capacity Act 2005 enables excessive fees to be challenged.



Finally, the new regime is in several respects more flexible. The forms enable the donor to choose a replacement attorney in case an attorney is unable or no longer wishes to act. He can also restrict the power and give guidance as to its operation.



Emma Lampier is a partner at City firm Kingsley Napley





LPAs ARE FAR LESS USER-FRIENDLY THAN EPAs, SAYS EMILY PANTLING

The change in procedure for appointing attorneys has largely come about because of a small minority of unscrupulous individuals abusing their appointment under an EPA. It was easy to appoint attorneys with the old system as the form could be downloaded from the Internet and completed without the donor taking legal advice, but surely this simplicity was the beauty of the old system, especially when we see the number of instructions drop in the coming months, as people are deterred by the long and complicated format of the new LPA.



The user-friendly EPA was very accessible to all and particularly the more vulnerable clients, who would have the most need for attorneys to assist them. They were also useful in emergency situations. Take, for example, an elderly lady who still has capacity but who is physically very frail. She lives alone and her only income is her state pension. With an EPA, she could appoint her trusted son as her attorney, who could instruct workmen to fix her boiler and sign cheques on her behalf. With an LPA, she would need to: obtain a certificate of capacity, either from somebody she knows or a professional person; have the 24-page form completed; and apply for the document to be registered with the Court of Protection, which would take several weeks.



Previously, the assessment of capacity was inbuilt within the instruction to a solicitor, in that they would not take the instruction if they deemed the client to lack capacity. In borderline situations, a solicitor would not take instructions without an assessment of capacity from the client’s GP.



It was advantageous, therefore, that an EPA could be used as soon as it was properly completed, especially in cases where the client’s problem was physical mobility, rather than mental capacity. Furthermore, the fact that the power was only registered at the time when the client had lost capacity meant that any party being shown the document was on notice that attorneys were now acting for somebody who had lost capacity. As a property and affairs LPA can be registered at any time, even by the donor themselves, there is nothing to differentiate when it is being used just for the donor’s convenience or when the donor has lost capacity.



It could be argued that an LPA could also be abused, in that a bank worker would not know whether the attorney showing them the LPA document was working on behalf of a client who lacked capacity or whether they were an unscrupulous attorney who had gained the trust of the donor, only to abuse their power later.



The cost of setting up an EPA was as little as £100 and although there were further costs to be incurred when the document was registered, as not every client would lose capacity, the registration costs were only incurred in a minority of cases. In order to create an effective LPA, the costs from start to finish will be up to £1,000, including the court fee for registration.



Although the LPA is intended to be more protective, as it makes it more difficult and expensive to appoint attorneys, it is inevitable that fewer people will be inclined to instruct solicitors to prepare LPAs for them. The unfortunate result will be that there will be more instances of deputies (formerly receivers) having to be appointed, which is a yet more expensive and complicated procedure.



It is also questionable whether a registered LPA is still actually vulnerable to being abused in the same way as before in any case. This is not to say that tighter guidelines were not required; however, these could have been brought in for the old system so that, for instance, an EPA could not be valid unless the donor had taken legal advice on the document and had their signature witnessed by a solicitor or a doctor.



Emily Pantling is an associate at Surrey firm Stevens & Bolton