Mental Capacity Act 2005 Update

The Mental Capacity Act 2005 Update.

This is an extract from a Government update on the workings of the Mental Capacity Act in April 2016.

Mental Capacity Act 2005 update

Mental Capacity Act 2005 update

The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. The Act makes it clear who can take decisions, in which situations, and how they should go about this. It enables people to plan ahead for a time when they may lose capacity.

When the Mental Capacity Act 2005 came into force on 1 October 2007, the role and function of the Court of Protection (CoP) changed, and in addition, the Office of the Public Guardian (OPG) was established. The OPG, an executive agency of the Ministry of Justice, supports the Public Guardian in registering Enduring Powers of Attorney (EPA), Lasting Powers of Attorney (LPA) and supervising Court of Protection appointed Deputies.

For more information on the roles of these specialised courts please see A Guide to Family Court Statistics that is published alongside this publication.

Court of Protection In October to December 2015, there were 6,821 applications made under the Mental Capacity Act 2005, up 7% on the equivalent quarter in 2014.

The majority of these (54%) related to applications for appointment of a property and affairs deputy (Table 17). Following the introduction of new forms in July 2015, applicants must make separate applications for ‘property and affairs’ and ‘personal welfare’. This is why there were fewer hybrid applications compared to previous years. There were 7,508 orders made, an increase of 11% on October to December 2014: most (55%) of the orders related to the appointment of a deputy for property and affairs (Table 18). The trend in orders made mirrors that of applications and has been steadily increasing since 2010 albeit at a faster rate, as Figure 15 below illustrates.

An LPA is a legal document that someone (the Donor) makes using a special form. It allows that person to choose someone in the present time, called the “Attorney”, that they trust to make decisions on their behalf, at a time in the future when they either lack the mental capacity or no longer wish to make those decisions themselves

Applications relating to deprivation of liberty increased from 109 in 2013 to 525 in 2014 to 1,499 in 2015. There were 489 applications made in the latest quarter October to December 2015. The overall increase follows the Supreme Court decision on 19 March 2014 whereby it was considered a person could be deprived of their liberty in their own home, sheltered accommodation etc, and not just the nursing homes and hospitals which were previously covered.

Of the 489 applications made in October to December 2015, 317 (65%) came from a Local Authority, 147 (30%) from solicitors and 25 (5%) from others including clinical commission groups, other professionals or applicants in person. Over a third (39%) of the applications were made under the streamlined process set out in Re X and others [2014] EWCOP25. The Health and Social Care Information Centre (HSCIC) collects data from councils with social services responsibilities on deprivation of liberty at a case level on an annual4 and quarterly basis.

Section 16 of the Mental Capacity Act (MCA) and Re X cases are new and considered by the court but not by Local Authorities first. Those cases which come under section 21A of the MCA 2005 are seen as appeals to the court of those who have already been assessed for deprivation of liberty and are likely to have been included in HSCIC figures.

3 P v Cheshire West and Chester Council and P and Q v Surrey County Council [2014] UKSC 19 4 http://www.hscic.gov.uk/catalogue/PUB14825 Mandatory collection 5 http://www.hscic.gov.uk/catalogue/PUB17509 Voluntary collection of number of DoLs applications, the number granted and the number not granted.

Mental Capacity Act 2005 update.