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The activity of the Court of Protection centres on the mental capacity of individuals.
The court makes decisions for people who are unable to do this for themselves, due to their mental incapacity.
The Court of Protection makes declarations as to a persons capacity based on medical or independent evidence, and can make personal welfare decisions or specific decisions for individuals, and appoint deputies to look after their welfare or financial affairs.
Assessing Mental Capacity
The Court of Protection can appoint deputies where it decides that someone no longer has the mental capacity to make their own decisions. To do this, a judge makes a Court of Protection Order.
However, before this happens, it is important that the court has a clear assessment of the individual’s mental incapacity.
The Mental Capacity Act 2005 sets out the conditions by which decisions can be made on behalf of someone lacking mental capacity.
To assess mental capacity, there is normally a two-stage test, involving these questions:
• Does the individual have an impairment of, or disturbance in the functioning of, their mind or brain?
• Does this impairment or disturbance mean that the individual is unable to make specific decisions when they need to?
An inability to make a decision will be because the individual cannot:
• Understand information about the decision that needs making
• Retain this information mentally
• Use this information as part of the decision-making process
• Communicate any decision they make to others.
The Mental Capacity Act emphasises that assessing mental capacity must be decision-specific. This decision-maker may be someone in charge of the individual’s day-to-day care.
Assessors of mental capacity do not always have to be healthcare professionals or medical practitioners, as an assessor is not a formal, legal title, they must however be able to demonstrate that they have the skills and expertise to assess capacity and be independent.
However, in certain cases, medical expertise and opinion may be necessary for assessing mental capacity, such as where there is a degree of complexity. This may then involve a medical practitioner, such as a psychiatrist or psychologist.
Acting in Best Interests
The best interests principle in the Mental Capacity Act states that any decision made on someone’s behalf must be in their best interests.
Under the best interests test, anyone acting as a decision-maker must take into account:
• The individual’s past and present wishes and feelings
• Their beliefs and values and how these would influence the decision if the individual had mental capacity
• Other factors the individual would consider if they had capacity.
The decision-maker must consult with other people close to the individual, wherever possible, and especially for issues concerning life-sustaining treatment.
Medical Practitioners and the Court of Protection
The relationship between medical practitioners and the Court of Protection is two-way. Medical practitioners can help the court, where complex decisions about medical capacity require expert opinion. But the court can also support medical practitioners in its appointment of deputies as decision-makers.
For more information about our personal legal services, including dealing with the Court of Protection, please call, or complete our online contact form, and we will be in touch with you as soon as possible.
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