The Mental Capacity Act 2005 provides for deputies to be appointed by the Court of Protection to make various financial and, in some cases, personal welfare, decisions on behalf of adults without the mental capacity to do so themselves. We are starting to see the courts address how deputies might be deployed in connection with care of, and services for, adults with learning disabilities.
Ealing LBC v KS concerned a dispute between the London Borough of Ealing and the family of a woman with learning disabilities about where she should live. The High Court refused to resolve the dispute by appointing a personal welfare deputy because, under the act, a deputy may not prohibit contact with the person lacking capacity. Such a power was needed in this case and so a deputy was inappropriate. The court retained control of the matter so that it could fix contact arrangements itself.
R(M) v Birmingham CC was a claim brought by parents of a disabled adult who wanted a council to be his deputy so that it could enter into a tenancy on his behalf. The High Court found that a council could be appointed as a deputy by the Court of Protection, in relation to an adult’s property and affairs, but it refused to order Birmingham CC to offer themselves up for appointment as a deputy. This was because no one may be appointed a deputy unless they consent.
Issue-specific test for capacity
A key principle of the act is that capacity is issue-specific. This was confirmed by the High Court in Saulle v Nouvet, a case about mental capacity to conduct litigation arising from a serious accident. The court pointed out that it could only decide whether the individual had the capacity to conduct that particular litigation and not all types of litigation.
Court of Protection
In KC v City of Westminster, the Court of Appeal was faced with an attempt to facilitate the marriage of a man with severe learning disabilities which, it was thought, might involve him being taken abroad. The appeal court considered the powers of the Court of Protection. It held that the court’s powers to decide where an adult lacking in capacity could live would, in an appropriate case, permit it to prevent an adult being taken to live abroad.
Shtukaturov v Russia was a European Court of Human Rights decision which did not concern the act but it is relevant because the court set out general principles on substitute decision-making.
Mr S was deprived of all legal capacity to act under Russian law because he had schizophrenia.
The court held that this was an unjustified interference with his right to respect for his private life under Article 8 of the European Convention on Human Rights because it was disproportionate. Russian law did not provide for a tailor-made response and so Mr S’s Article 8 rights were limited more than strictly necessary.
This should not happen under the Mental Capacity Act.
One of the act’s key principles is that, in taking decisions, “regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”. Accordingly, the Mental Capacity Act is already structured to encourage proportionate decision-making.
•Ed Mitchell is a solicitor, editor of Social Care Law Today and Community Care’s legal expert
• News, comment and analysis of mental capacity issues