A smiling carer chats with an elderly lady

Dementia & mental incapacity – an international dilemma

One day last week I attended two separate events concerning capacity and how this is a growing problem – one with cross-border implications.

The STEP Mental Capacity Special Interest Group (SIG) is comprised of practitioners from around the globe who have an interest in capacity issues. We discussed problems facing our colleagues in such diverse jurisdictions as Australia and the Cayman Islands where the approach to incapacity is very different. The aim of the group is to raise awareness of international issues surrounding those with incapacity and with a view to achieving best practice.

In England and Wales we have a very clear guide in the form of the Mental Capacity Act 2005 (MCA) and those of you who read this blog will be aware of the increasing number of cases that are being reported by the Court of Protection. These cases are as diverse as where people should live Essex County Council v RF & Ors (Deprivation of Liberty and damage) [2015] EWCOP 1 and MASM v MMAM & Ors [2015] EWCOP 3 (29 January 2015), whether they should be sterilised against their wishes The Mental Health Trust and others v DD and another [2015] EWCOP 4 and what authority people have to make gifts as attorneys or deputies Re Gladys Meek [2014] EWCOP 1, [2014].

These are monumental decisions, but particularly so when it is considered that these cases have only been brought to Court because an individual lacks the capacity to make the decision themselves. I anticipate that we will be seeing more of these types of cases in the coming years as people’s awareness of mental capacity grows and there is greater understanding of how the MCA impacts upon the lives of the individual.

As a solicitor, I am aware of these issues and how the law has an impact on our lives as I have access to the cases and I work with some highly qualified and experienced practitioners in this field – but I’m not sure how the cases are followed or understood in the wider world.

On the same day I attended a presentation at the RSA about the Dementia Timebomb.Professor June Andrews, director of Dementia Services at Stirling University (in Scotland, which is a different legal jurisdiction to England and Wales), spoke to a diverse audience of medical professionals, legal professionals, charities and interested parties about the economic and social impact of dementia. Professor Andrews said that even as a professional in the area, she finds the information baffling and difficult to sift though. So how do those lacking capacity cope? In her book ‘Dementia: The One-Stop Guide’ Professor Andrews gives some advice and sets out the resources available for families, professionals and those living with Dementia.

The audience were highly engaged – tweeting the event live using the hashtag #RSADementia and asking questions. I had an opportunity to raise the question of engagement and was pleased to hear about the Dementia Festival of Ideas “a year-long celebration of the most stimulating thinking, writing and discussion about what dementia means in 2015”.

Hopefully, these events will help to engage the public about issues surrounding capacity and assist with the confusion that can result when families are affected by incapacity.

I am mindful that incapacity has an international reach and does not limit itself to legal jurisdictions where the Mental Capacity Act 2005 is in force.

Are the issues the same in Europe and Asia? In a world where we are ever more international in our approach, our lives, much like dementia, do not sit within neat geographical boundaries so I wonder whether we will, in the future, face an international Dementia Timebomb with global impact.

For further information please contact Jess Flanagan or a member of the Court of Protection team.