On 17 October 2014 Clarke Willmott is hosting a one day conference ‘The Mental Capacity Act 2005: Promoting Autonomy and Empowerment’. Ahead of the conference Jess Flanagan looks at the way legislation has evolved over the past forty years, placing individuals at the centre of the procedures that affect them.
Empowerment of the vulnerable individual lies at the heart of our work, whether that individual has capacity or is unable to make decisions relevant to his or her welfare, and whether we are acting on behalf of the vulnerable person, or for a family member, friend, carer or advocate. Professor Hugh Rickards will talk to us about his clinical experience of assessing capacity at the conference.
Over the last twenty five years there has been a gradual but consistent development in health and social welfare legislation putting empowerment of the individual at its core. The Children Act 1989 was, perhaps, the first step in this process, making the ‘welfare of the child paramount’; it is the right of the child to have contact with both parents not the right of the parents to have contact with their child.
The protection of human rights has been an important development and since the European Convention on Human Rights became enshrined into the law of England and Wales, Scotland and Northern Ireland in 1998, all individuals in the United Kingdom have their rights under that convention protected.
Under Article 8 the individual is protected from arbitrary or unnecessary interference from the state in his or her private and family life, and it can also provide leverage upon the state to provide services to ensure that P’s rights under Article 8 are not breached.
In the recent case of P (Appellant) v Cheshire West and Chester and another and P and Q v Surrey County Council  UKSC 19 Lady Hale spoke of the ‘universal character’ of human rights and underlined that ‘people with disabilities have the same human rights as the rest of the human race’ She spoke further of the State’s ‘duty to make reasonable accommodation to cater for the special needs of those with disabilities’. Simon Burrows will be talking about this case, and its implications six months on.
Throughout the 1990s various pieces of anti-discriminatory legislation were passed, culminating in the Equality Act 2010. At the core of the Equality Act 2010 is the individual’s right to be treated equally and have equal opportunities irrespective of age, gender, disability, race, colour, creed or sexual orientation. Obligations lie with the employer, or the provider of services and ultimately the state to ensure that the principle is respected and acted upon.
In October 2007 the Mental Capacity Act 2005 came into force. Fundamentally the MCA provides the legislative framework to ensure that an individual who lacks capacity to make decisions is treated with the same autonomy and respect given to adults with capacity. Any actions or decisions made on behalf of P must be in P’s best interests. The Act promotes and, in certain circumstances, makes it a duty for an Independent Mental Capacity Advocate, an IMCA, to be appointed to be the voice of P. I would like to see an IMCA appointed for P when any major decision is being made, irrespective of whether other family members are willing to speak on P’s behalf. In my view an IMCA is the acknowledgement of the autonomy of P and should be a fundamental part of P’s armoury. Jakki Cowley and Sue Lee from ‘Empowerment Matters’ will be talking about their work as IMCA’s and their important research which has recently led to the publication of their ‘Guidance for Assessing Supporting and Empowering Specific Decision making’.
The Court has been at the forefront of empowering P. Jurisprudence has set the bar low for assessing capacity. Our key-note speaker, Mr Justice Baker has discussed (in CC and KK and STCC  EWCOP 2136) maximising the entitlement of the individual to make his or her own decisions, however unwise they may be. Best interest decisions made by the court have tended to resist the risk averse decisions that might be made by a local authority and have enabled P to go on holiday or return home when risks may appear to others to be quite high; the case of Manuela Sykes which I discussed in May is a prime example. Mr Justice Bakerwill be our key note speaker at the conference on 17 October 2014 giving his thoughts on cases that have been before him recently.
The Court of Protection rules and procedures also place P at the centre of the case, requiring that P is served with any application to the court and that those interested in his or her welfare are also notified. In my view, however, it is an anomaly that P does not have to be joined as a party to Court of Protection proceedings. P is almost always joined in ss15,16 and s21A MCA 2005 health and welfare and deprivation of liberty proceedings, so for P to have potentially no part in proceedings where life changing decisions are being made for them, or where their liberty is at stake, this is in my view a breach of Article 5(4), Article 6 and potentially Article 8. It is our understanding that clarity on this issue is being sought as permission has been requested to appeal Sir James Munby’s recent decision in Re X and others (deprivation of liberty)  EWCOP25that P may not have to be joined in deprivation of liberty proceedings that do not fall under s21A MCA 2005. Watch this space.
Although I fully acknowledge the logistical and financial difficulties in P’s participation and representation in proceedings, in my view it is P’s fundamental right under Article 6 and rather than being brushed over, this needs to be addressed. If P lacks the capacity to litigate (and most P’s in Court of Protection proceedings do) he or she will need a litigation friend. There is a real shortage of people willing to act as litigation friend to P and the pressure on the Official Solicitor (OS) as litigation friend of last resort is overwhelming. Clarke Willmott has been in the forefront of encouraging and supporting advocates and RPRs to be litigation friends to P Sophia Roper from the Office of the OS will be speaking at our conference and we will no doubt cover this problem in discussions. Perhaps, as with the Court of Protection Panel Deputies, the court could consider setting up a panel of Litigation Friends.
The financial issue of P’s participation in the proceedings must also be considered. Court of Protection proceedings are very costly and few fall below £10,000 by their conclusion. Non means tested legal aid is only available to P in s21A MCA proceedings which challenge a DOLS Standard authorisation. Legal Aid for all other proceedings is means tested. We often act for individuals who have savings of less than £15,000, but more than the £8,000 legal aid limit. Until their savings have been whittled down in legal costs to below £8,000 we cannot apply for legal aid, and that is without taking into account a capital contribution they will have to pay if they have savings of more than £3,000. Non means tested legal aid is available for a child in child care proceedings, and we feel quite strongly that it should be available for P who lacks the capacity to litigate so that they can be properly legally represented in all proceedings concerning their life and liberty in the Court of Protection.
The Care Act 2014 comes into force in April 2015, placing “wellbeing” at its core and setting out that a local authority must have regard to “…the importance of beginning with the assumption that the individual is best placed to judge the individual’s wellbeing”. In the words of Martin Luther King ‘ It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also’.
Laws and jurisprudence may not on their own change hearts but they can change practice. To properly empower our most vulnerable individuals we need to use all the resources available. Notwithstanding the austerity measures the legislation and our courts are clear that the rights of the individual are at the core of any process.
For further advice about capacity issues please contact a member of our Court of Protection team.