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3.90That helps but takes matters only so far.
3.91What does the phrase, ‘The way the person does that is by applying the MCA 2005’, mean in practice? Are there forms or documents to complete, does an application need to be made to a court, does a decision-maker need to be formally appointed, and so on?
3.92Put differently, we now know the principles, but what are the mechanisms – the mechanics of getting the job done?
Four main mechanisms
3.93There are four main decision-making mechanisms, four ways of making decisions under the MCA 2005.
3.94All of them are relevant to personal welfare decision-making. Only two of them – lasting powers of attorney (LPA) and the Court of Protection – are relevant to financial and property-related matters.
Arrangements made by the person themselves when they had capacity |
1. Advance decisions to refuse treatment | An adult with capacity to do so may make an advance decision to refuse a particular treatment at a later date if they lack capacity at that time to decide whether or not to receive it. Because the decision was made when the person still had capacity, subject to certain exceptions it is binding on clinicians. |
2. Lasting powers of attorney (LPA) | An adult with capacity to do so may make an LPA appointing one or more trusted persons to make decisions for them at a later date which they lack capacity to make for themselves. There are two types of LPA. One is used to authorise the person’s chosen attorney(s) to make personal welfare decisions; the other is used to authorise making financial and property-related decisions on the individual’s behalf. (LPAs replaced the old-style enduring powers of attorney (EPAs), which were limited to authorising financial and property-related decisions and could not provide for personal welfare matters. Previously made EPAs continue to have effect but no new ones may be created.) |
Arrangements which can be made for them after capacity has been lost |
3. Court orders | The Court of Protection can make the particular decision(s) on the person’s behalf or appoint a person called ‘a deputy’ to make personal welfare and/or financial and property-related decisions for the person as and when they arise. |
4. Section 5 | MCA 2005 s5 relates only to personal welfare matters and is an exemption from legal liability provision. In general terms, it states that a carer (paid or unpaid) will not be liable for non-negligent care and treatment given to an incapacitated person provided they comply with the conditions set out in section 5. |
3.95It is helpful to say a little more about this overall decision-making structure.
Above and below the line
3.96The first two mechanisms – the ‘above the line’ mechanisms in the table above – are things which adults with capacity can do for themselves to plan for the day when they lose capacity:
•As regards personal welfare matters, they can make a decision in advance to refuse a particular treatment or treatments they dislike and/or appoint a person or persons they trust to make future personal welfare decisions for them which they lack the capacity to make.
•From this it can be seen that if a person lacks capacity to make the decision in question the first thing to do is to check whether they made their own arrangements to cater for this situation when they had capacity. If so then, unless their arrangement is invalid or inapplicable for some proper legal reason, apply this mechanism. If not ‘go below the line’ and – unless there are appropriate ways of dealing with the situation outside the MCA 2005 – make an application to the Court of Protection or rely on the protection afforded by section 5.
•As regards financial and property-related matters, the only mechanism ‘above the line’ is an LPA for property and financial matters.
•If the person has made an LPA (or previously an old-style EPA) then unless it requires registration, or is invalid or inapplicable for some proper legal reason, this is the appropriate mechanism to use.
•Because only adults (people aged 18 or over) can make these ‘above the line’ arrangements, necessarily it follows that if the incapacitated person is a child there cannot exist a valid LPA, EPA or advance decision to refuse treatment. In their case it will always be necessary either to go ‘below the line’ or to seek an alternative to the MCA 2005, such as parental authority or a provision of the Children Act 1989 or MHA 1983.
Going below the line
3.97If the incapacitated person did not make their own ‘above the line’ arrangements in anticipation that subsequently they might lack capacity to make this decision, it will be necessary to resort to the two remaining mechanisms, ‘below the line’:
•As regards financial and property-related matters, the only mechanism ‘below the line’ is a court application. The usual application is to apply to the court for it to appoint a ‘deputy for property and affairs’ on the incapacitated person’s behalf. The person appointed, who is often a close relative or a solicitor, is authorised by the court to deputise for the incapacitated person and to make financial and property-related decisions for them, subject to any restrictions in the court order. Because routine financial decisions – for example, paying bills – are needed on a day-to-day or week-to-week basis, this is more practical than going to court each time a financial decision is required.
•As regards personal welfare matters – for example, decisions about providing care or treatment to the individual – there are two options: making an application to court or applying section 5.
3.98For reasons that may not always be valid, the Court of Protection has sometimes discouraged the appointment of personal welfare deputies.
3.99An application for a court order should be made if it is in the person’s best interests – for example, because the care or treatment is particularly intrusive, there is a significant dispute about what is in the person’s best interests or appointing a personal welfare deputy is in the person’s best interests.
3.100In practice, almost all routine care and treatment is provided under the protection of section 5 without a court order or deputy in place. Many routine treatment and care decisions are not opposed by the incapacitated person, their family or paid carers. For example, decisions about bathing and treating an unconscious person or a decision to dress and help feed someone with severe dementia. Other decisions, where there is some difference of opinion, can be resolved by holding a best interests meeting at which the options are discussed and a resolution reached. In all of these cases, what is happening in legal terms is that the care and treatment is being provided in reliance on the last mechanism, section 5, and there will be no application to the Court of Protection for it to authorise the step in question.
3.101Section 5 does not as such authorise providing any care or treatment; rather, it exempts a person who does provide an incapacitated person with care or treatment from any legal liability, provided they reasonably believe it is in the individual’s best interests and the other section 5 conditions are satisfied.