30th January 2019

We regularly act for clients who lack capacity to make decisions about particular issues such as residence, care and contact with other people. Such cases are regulated by the Mental Capacity Act 2005 and are dealt with by the Court of Protection which makes best interests decisions on behalf of the person.

To lack capacity the person must be unable to make a decision for themselves because of an impairment of, or a disturbance in, the functioning of the mind or brain. The person is assessed as unable to make the relevant decision if as a result of that impairment or disturbance they are unable to understand the information; to retain the information; to use or weigh the information; or to communicate their decision.

A person is not to be treated as unable to make a decision merely because they make an unwise decision. But how can vulnerable people who are assessed as having capacity be otherwise protected?

The answer is that the High Court can use its inherent jurisdiction. In a recent case the High Court decided that a 97 year old man who was blind and lived in squalid and dangerous conditions, and whose son was considered to exert undue influence over him, should reside in a care home over Christmas. This was notwithstanding that the man had capacity to make his own decisions regarding his residence and understood the risks of living in those conditions and wanted to be at home. The implications of this decision were significant as the consequence was that the man was deprived of his liberty in the care home against his wishes. The decision was appealed on the basis that the decision breached human rights laws.  However, the appeal was rejected by the High Court which took into account what was considered to be an emergency situation. This case is an example of the significant powers of the High Court in relation to those perceived as vulnerable and/or subject to undue influence which may impact on their decision making. However, the judge was clear that judges must have proper regard to the principle of personal autonomy and not fall into the trap of being excessively protective.

Blog by Katharine Lawrence, Partner and Mental Health Solicitor