Mental capacity news


An unwise decision?

People make unwise decisions all the time, so is it right for people with mental disabilities that could affect their decision-making capacity to be expected to make ‘wiser’ or ‘better’ decisions than anyone else?

One of the principles of the Mental Capacity Act 2005 is that a person should not be treated as lacking capacity merely because he or she makes a decision that others would consider to be unwise. Different people will make different decisions as they give greater weight to some factors than others do and everyone will have their own values and preferences. What some people will see as an unwise decision, others will see as a sensible one. What we really need to question is whether the person has thought through the actual decision and the outcome and whether they have weighed up the risks involved.

I was approached by a client who was considered not to have sufficient mental capacity to manage his own finances. I was appointed as his Deputy through the Court of Protection to manage his property and financial affairs. In fact the client was very high functioning and could argue quite logically with me on certain points – more so than some clients who were believed to have the mental capacity to make financial decisions.

My client had been involved in a car accident and had received an award for compensation. Being a young man in his 20’s, he was keen to set up his own business and he wanted to set up a business selling vodka tasting to various nightclubs. Initially I was quite unsure about this and really didn’t want him to “waste” £5,000 of his compensation claim. However, I wanted him to be involved in the decision-making process and work out for himself that this would be a poor decision. I asked him to go away and put forward a business proposal and check whether he could get any additional funding from the bank. To my surprise he came back with a coherent business proposal and I agreed to fund the initial set up.

I knew the business would not be hugely successful but my client would have a lot of fun setting it up and running it and it would also give him something tangible to focus all his energy on. It was going to be a learning process for him but eventually the business folded.

The spending of £5,000 on this business may have been seen by some as an unwise decision but in fact the client was clearly able to see the steps involved in setting up the business and knew the risk that he was taking but for him he really enjoyed the challenge of doing this. So, as a Deputy, I may not agree with every decision a client makes but as long as I am happy that they have thought this through carefully and considered the consequences then the decision can stand. What matters is their ability to make that decision and not the outcome.

A question of fluctuating mental capacity...

Last year, the Court of Appeal handed down a judgement regarding an appeal in a case that concerned a claimant with a fluctuating capacity to conduct legal proceedings.

“Loss of capacity”

The question considered by the Court was whether a “loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer”.

This question of capacity is central to all Court of Protection work, and it is interesting to see how issues of capacity are dealt with across the judicial system.

This case began in 2002, when a patient brought proceedings claiming damages for clinical negligence. This was a complex and contested case, and it was not until February 2005 that the parties agreed that judgement should be entered for damages to be assessed on the basis of 95% liability.

Conditional Fee Agreement

At the commencement of proceedings, the claimant was deemed to lack the mental capacity to instruct solicitors and therefore she acted through her father as her litigation friend. However, when the claimant regained mental capacity in May 2005 her legal aid certificate was discharged and she immediately entered into a Conditional Fee Agreement (CFA) with her solicitors. As this was prior to the changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the claimant’s solicitors were entitled to recover a success fee from the defendant upon the settlement of her claim.

Appointment of a deputy

However, in February 2007, the claimant was again assessed as lacking mental capacity and the Court of Protection appointed a receiver who then became the claimant’s deputy with the introduction of the Mental Capacity Act. The deputy continued to liaise on behalf of the claimant with the litigating solicitors with regards to the ongoing clinical negligence claim.

After a considerable time, the quantum proceedings were settled and approved by the Court. As such, the claimant’s solicitors entered their Bill of Costs for assessment by the Court. Unfortunately, following a dispute from the defendant, the bill was required to be amended to exclude all costs claimed following the claimant’s loss of capacity in 2007.

The Judge commented that the decision in Findley v Barrington Jones [2009] (where it was found that a claimant who lost capacity was no longer able to give instructions and therefore the contract of retainer was frustrated) supported the defendants dispute and this led him to the “desperately unfair” conclusion that the claimant’s solicitors should be deprived of their costs, following their client’s lack of capacity.

Application for appeal

The claimant’s solicitors then applied for an appeal, which was eventually granted as a re-consideration on the basis that the arguments put forward were recognised to be of considerable importance. Mr Justice Phillips found that the defendant’s application to disallow the claimant’s solicitor’s costs following the loss of capacity in 2007 should be dismissed. He gave detailed responses to all of the points raised, and in some instances was in agreement with the initial judgement. However, the fundamental question remained as to whether a change to incapacity should terminate a solicitor’s retainer.

Change to mental capacity

The Judge held that a change in mental capacity does not automatically terminate a solicitor’s retainer. Contracts entered into by a mentally incapacitated person are not void, but voidable. Therefore, “as a contract is not void even if one party lacked mental capacity when it was made, it cannot be the case that subsequent mental incapacity would in itself automatically terminate the contract as a matter of operation of law”.

Further to this, in cases of a loss of capacity where a claim is ongoing a deputy will be put in place in the short term, until capacity is regained. A loss of capacity is also a possibility that should be understood by both parties, and should therefore not be a situation that would frustrate the contract should it occur.

Fluctuating mental capacity and the Court of Protection

For clinical negligence and personal injury solicitors this is an important judgement that gives clarity on the issue of fluctuating capacity, which is one that is likely to be present in many cases that they take on.

For deputies and those working the Court of Protection, it is equally important to be aware of the importance of confirming the validity of any pre-existing contracts that were entered into, prior to the loss of capacity. Clarification as to whether a contract is still valid, and then taking steps to make a new contract if required, will avoid potentially costly situations such as the one above.

Fifty Shades of Capacity'

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 welfare;
  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.

One man and his dog

This is a story of how a brain injured man and an unwanted dog became an unlikely but inseparable duo.

Buster the dog - Boyes Turner Court of Protection Team

In July 2004, at the age of 23, Billy was a happy go lucky lad, working hard and planning his next holiday.

During a break from work, Billy was crossing a road in Hayes, Middlesex, to buy a newspaper. As he was crossing the road, a car was travelling at speed in a bus lane undertaking traffic. The driver did not see Billy until it was too late, thereby knocking him down.

As a result of the accident, Billy sustained serious multiple injuries including face and jaw fractures, a collapsed lung, fractured pelvis and severe brain injury. He was airlifted to hospital in London and put on life support in intensive care. The medical team thought that as his brain injury was so severe he was unlikely to survive.

However, much to everyone’s surprise Billy did survive. He underwent intensive rehabilitation and was finally allowed home.  It was only once he went home that his family realised that the brain injury had caused a serious change of personality. Gone was the laid back, reliable and cheerful lad. Instead Billy had behavioural problems, became bad tempered very quickly, and was completely unreliable. As a result of his behavioural difficulties Billy lost his job. This led to him self-harming and becoming depressed. He knew the accident had changed him and was frustrated that nothing he did seemed to change this. This remained the case until he met Buster.

A personal injury claim was pursued on behalf of Billy. As part of his claim, Billy was assessed as not having the mental capacity to manage his property and affairs. The Court of Protection appointed a professional deputy to assist him.

Once the personal injury claim had successfully concluded, Billy found himself with nothing to do each day and got increasingly depressed. His close friend mentioned that she volunteered at a dog rescue centre walking the different dogs and that he might like to go with her. They saw a barking, scary looking dog, which Billy’s friend said she would like to walk. This was Buster. Buster is a cross Staffordshire and English Bull dog.

Billy advised his friend that if she took the scary looking dog out then he would walk behind her, which is exactly what they did. Billy explained that on this first walk Buster was more like a monkey than a dog, as he attacked every tree branch he could.

After this, Billy visited the rescue centre and took him out regularly. He said he began to like him more and more. As a result, Billy bought Buster and took him home. After taking Buster to the vets to have him micro chipped, he discovered that Buster was aged about three and was part of a breed referred to as the nanny dog, as they look after the young.

Having Buster has given Billy’s life focus. They go for long walks and keep each other company. Billy says that Buster likes to sun bathe and chase cats. He has become an expert in getting through the fence in his parents garden and digging up their vegetables. He is very friendly and does not like to fight.

Billy explains that his attitude to certain situations, as a result of his brain injury, meant that when he was agitated or annoyed he would throw his arms around and shout a lot. This would frequently be directed at Buster. However, seeing the affect this had on Buster has made Billy realise how he was acting and has helped him to control how he reacts.

In describing Buster, Billy says, “he is my first ever pet and it brings a tear to my eye when I hear him yelp because he has hurt himself. Buster loves meeting people and is always pleased to see me. He has helped me learn to think before I react”.

Billy is a client of our Court of Protection team, headed up by Ruth Meyer, who deal extensively with all court of protection matters as well as private trusts covering the management of compensation awards.

Our team are highly experienced and advise on everything from one-off property and affairs matters to managing a compensation award in the best interests of a client.

When Alzheimer's or Dementia leads to a deputy

What happens if you have a relative who has been diagnosed with a degenerative brain condition? In particular, this could be an elderly relative who has been diagnosed with Alzheimer’s or Dementia.

Jim is aged 86 years.  He has never married and has no children. His next of kin is his older brother who is not resident in the UK.

As a result of erratic behaviour, Jim was placed into a care home for his own safety by Social Services.  He was then diagnosed with Dementia and Alzheimer’s.  Social Services advised his brother that Jim had lost capacity and was no longer able to manage his own affairs and that, for his own safety, he would need to remain in a care home for the rest of his life. They then advised that he would be required to contribute to his care fees and accordingly his house would need to be sold.

The only way forward was for an application to be made to the Court of Protection for a Deputy to be appointed to deal with Jim’s property and affairs on his behalf.

Following discussions with Jim’s brother, Ruth Meyer of Boyes Turner applied to the Court to be appointed as the Deputy and this Order was granted.

This means that the Deputy can arrange to sell Jim’s house and invest the money on his behalf.  It also means that she can ensure that all of his needs are met on a day to day basis, to include his contribution to the care fees.

This has given Jim’s brother peace of mind in the knowledge that Jim is in a safe environment, his needs are being met and his welfare looked after.

"Maternity Services in England" report published

The National Audit Office’s report “Maternity Services in England” indicates some improvement in the way in which maternity care is delivered. 

Unfortunately it seems this isn’t uniform across all Trusts with wide unexplained variations in the performance of individual trusts in relation to complication rates and medical intervention rates even after adjusting for maternal characteristics and clinical risk factors.

In 2011 as many as 1 in 133 babies were stillborn or died within 7 days of birth. Whilst lower than previously, compared with other areas of the UK, there is still room for improvement.

The level of consultant input on the labour ward has improved substantially but again not all trusts are meeting the recommended levels. Midwife numbers have also increased but are still not in line with the widely recognised benchmark for midwife staffing levels.

Experienced maternity and neonatal claims lawyer Susan Brown commented on the report:

“This report finds that maternity care accounted for one third of the clinical negligence budget in 2012-13.  This is because, when maternity care goes wrong, it can have very devastating consequences.  If a baby suffers a brain injury as a result of the failings in maternity care then the claim can be worth several million, because they will have a lifetime of additional care needs. There needs to be a continued drive to improve the safety of maternity care across all trusts so that these claims do not arise.  In the meantime sadly we are frequently contacted by families who have suffered poor maternity care, often with tragic outcomes”.

The service was personal, professional and considered. I was treated so kindly and in the end I knew that not only had I found the right organisation but also the right person.

Boyes Turner client

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