09th September 2013

Court of Protection in the News

A committee in the House of Lords is considering ways to improve how the law deals with mentally incapable adults and particularly whether the Mental Capacity Act 2005 (the principle piece of legislation which guides how we deal with mentally incapable people in England and Wales) could be improved.

Among other things, the Mental Capacity Act set up the Court of Protection, a special court which deals with making decisions for people who are mentally incapable of making them for themselves.

In a call for evidence, expert witnesses told the Committee that in their view, the Court of Protection for most people is an unknown quantity and most people find it difficult to access, not least because they know very little about it. The witnesses said that many people caring for mentally incapable relatives find it difficult to understand the Mental Capacity Act and what obligations it places on them in their role caring for people who might be mentally incapable. The witnesses also said that professionals including the police, social workers, hospital workers, bank managers, and housing officers should have much more training on how to apply the Mental Capacity Act in practice.

Setting up the Court of Protection was a key element of improving the law for mentally incapable people when the Mental Capacity Act was passed in 2005. Its role is to take decisions on behalf of mentally incapable people, especially where there is disagreement about what decision should be taken. Decisions it regularly takes include where someone should live and what type of care they should have, but the Court can make a wide range of decisions for a person who is incapable of making one for themselves.

Whenever it is proposed to take a decision for a mentally incapable person, whether or not the Court is involved, decision makers must be sure that the person in question does in fact lack the mental capacity to make that particular decision. Just because a person is incapable of making one decisions does not mean that they are automatically incapable of making all decisions. The person’s capacity needs to be assessed for each decision being made.

If a person lacks capacity to make a decision then any decision taken on their behalf must be taken in their best interests. There is no definition of “best interests” but the Mental Capacity Act 2005 does provide a checklist of the types of things to consider when trying to decide what is in a person’s best interests including:

  • their past wishes and feelings on the same topic;
  • their present wishes and feelings on the issue at hand;
  • their beliefs and values that might feed into their decision making if they had capacity;
  • the views of anyone named by the person as someone to be consulted;
  • the views of those who have an interest in the care and treatment of the person.

If there is no dispute about a decision which needs to be made, then there is usually no need to involve the Court. If however, people with an interest in the care of the incapable person, disagree with the proposed decision then the Court is there to resolve the dispute and to take over the decision making role. The Court will consider all of the points raised above and will reach a final conclusion about what is in the incapable person’s best interests.

The Court of Protection can also consider issues about deprivation of liberty where it might be necessary to deprive someone of their liberty in their best interests, for example, to keep them safe.

Although the Committee is not due to report until February 2014 and so any changes to the current regime are some way off, it is encouraging that the problems currently posed are being addressed. In the meantime, if you need more information or training about the issues surrounding mental capacity law and/or the law on deprivation of liberty for mentally incapable people, please contact Anna Thurston on 07985 624 277.

For further information please get in touch with our dedicated team.

You can always call us on 0845 894 1622 or email on


4 hours ago

Our Fraud Solicitors, Laura Smith and Sundeep Soor, have successfully defended a client who was charged with Conspi…

4 days ago

@NottsLawSociety Many thanks to Selina Hinchliffe from @brownejacobson for making it such a relaxed and positive session!

Follow us @CartwrightKing