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Written on 23rd February 2015 by Ruth Meyer

A person’s legal capacity to make decisions is rarely clear cut and can often be extremely difficult to assess. This is because they may have the ability to understand one particular issue but not others. To confuse things further, also, just because a person has capacity on one day it doesn’t necessarily follow that they will have it on the next or indeed even at a later time on that same day.

Where a person lacks capacity to manage their assets and make their own decisions a deputy is appointed by the Court of Protection. I have been a professional deputy for well over a decade and much of my time is spent working directly for clients managing their affairs and finances. I also provide help and assistance to parents who are deputies for their own children and many of the questions I get asked concern welfare issues.

One of these recently came my way from the parents of one of my clients, a young lady called Sarah. She was severely injured at birth resulting in cerebral palsy and severe learning difficulties. Her general level of understanding is similar to that of a young child and up until she was thirty, Sarah lived with her parents who were also her full time carers. For the last five years she has been in assisted living accommodation, is well looked after and makes lots friends.

The issue that occurred at first sight may seem trivial, a planned trip to the cinema organised by Sarah’s assisted living accommodation carers. Normally, this wouldn’t have been a problem – if the film had been appropriate for their daughter.

However, when Sarah’s parents heard that the movie was Fifty Shades of Grey they were very concerned. The film has an 18 certificate and contains explicit sex and violence as well as very strong language. According to the British Board of Film Classification, films rated 18 are for adults only and not suitable for children. No-one under 18 is allowed to see an 18 film at the cinema or buy or rent an 18 rated video.

For many parents with a child that has reduced capacity, seeing this type of film would be a major worry. This is the view that Sarah’s parents had and they believed that their daughter would have found Fifty Shades of Grey both extremely confusing and distressing. When they asked the home about the film’s suitability, they were told that as Sarah was over 18 that she could make this decision herself.

Sarah’s parents came to us wanting to know where they stood legally in terms of their own views as to what their adult daughter could watch.

The general rule in this type of situation is that if a person is over 18, and has capacity then they are able to make the decision themselves. However, under the Mental Capacity Act 2005 “if at the material time the person is unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance of the functioning of the mind or brain” – they lack the required capacity to make the decision.

Given Sarah’s situation and severe learning difficulties it was obvious that she didn’t have the required capacity and that any welfare decision should be made in her “best interests”. The question that the home should have considered is whether or not Sarah had sufficient capacity to make the decision to see Fifty Shades of Grey.

Under Section 4 of the Mental Capacity Act 2005 the residents’ home should consult and take the views of:

  • Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind.
  • Anyone engaged in caring for the person or interested in his welfare.
  • Any done of a Lasting Power of Attorney granted by the person.
  • Any deputy appointed for the person by the Court.

I explained to Sarah’s parents that, as she was over 18, if she had capacity then she could make the decision as to whether to see the film herself. However, from what they said it became quite clear that she did not have capacity to make this decision and would be confused by what she would see and may even be upset.

I confirmed to the parents that if Sarah did not have capacity then any welfare decision would need to be made in what would be in her “best interests”. Under section 4 of the Mental Capacity Act the residents’ home should consult and take the views of:

  1. Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind
  2. Anyone engaged in caring for the person or interested in his welfar
  3. Any done of a Lasting Power of Attorney granted by the person and
  4. Any deputy appointed for the person by the Court

From this it is clear that Sarah’s parents should have been contacted by the home before considering the film as they had an interest in Sarah’s welfare. On reflection, the residents home subsequently decided that it no longer wished to take residents to see the film.

To prevent this type of situation from occurring again, Sarah’s parents were advised to write to the residents home to inform them that if a difficult decision needed to be made that they should be consulted as they were interested in their daughter’s welfare and that their views needed to be taken into account (according to the Mental Capacity Act).

When determining a person’s capacity to make a decision there are a large number of issues that need to be taken into consideration. It is rarely ever clear cut, and therefore often worthwhile appointing a professional deputy.