To Austin
SECOND EDITION
Bridgit Dimond
Emeritus Professor
University of South Wales
Wales, UK
This edition first published 2016 © 2008, 2016 by John Wiley & Sons, Ltd
First edition published 2008 by Blackwell Publishing, Ltd
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Library of Congress Cataloging-in-Publication Data
Names: Dimond, Bridgit, author.Title: Legal aspects of mental capacity : a practical guide for health and social care professionals / Bridgit Dimond.
Description: Second edition. | Chichester, West Sussex ; Hoboken, NJ : John Wiley & Sons, Inc., 2016. | Includes bibliographical references and index.
Identifiers: LCCN 2016002291 (print) | LCCN 2016002972 (ebook) | ISBN 9781119045342 (paperback) | ISBN 9781119045359 (pdf) | ISBN 9781119045366 (epub)
Subjects: | MESH: Great Britain. Mental Capacity Act 2005. | Mental Competency–legislation & jurisprudence | Informed Consent–legislation & jurisprudence | Great Britain
Classification: LCC KD737 (print) | LCC KD737 (ebook) | NLM W 32.5 FA1 | DDC 344.4104/4–dc23
LC record available at http://lccn.loc.gov/2016002291
A catalogue record for this book is available from the British Library.
Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books.
Cover image: Getty/shuoshu
The numbers of adults who are incapable of making their own decisions will never be known exactly but there are probably over 2 million. The number thought to be suffering from dementia is probably over 700 000, and this number is likely to rise as life expectancy increases. Mental incapacity covers a variety of conditions. Some may never have had capacity such as those with severe learning disabilities or who have been born with serious brain damage. Others may lose their capacity through deterioration and diseases such as Alzheimer’s or through trauma such as road accidents. Some may suffer impairment temporarily, and others lose mental capacity never to recover it. As a consequence significant decisions must be made on behalf of such diverse persons and for varying lengths of time. Such persons must be protected from exploitation and abuse. They are entitled to receive a good quality of life.
Legislation to provide a framework for the protection of mentally incapacitated and vulnerable adults and for decisions to be taken on their behalf has been in the pipeline for over 15 years. In the absence of statutory provision, the courts have had to fill the gaps and the common law (judge made law) has laid down the principles on when and how decisions are to be taken on behalf of such persons. The Mental Capacity Act 2005 was thus long awaited and its effects are being felt across all fields of health and social care. All health and social services professionals are finding that the Act and Regulations made under it affect their work and the decisions they make. It is the intention of this book to assist practitioners in understanding the basic provisions of the Act and how it applies to their professional responsibilities. It is also intended to be of assistance to the many carers who are forced into or find themselves in the position of having to make decisions on behalf of mentally incapable relatives and friends. It has been decided not to include the full text of the Act as an appendix as originally planned, since all the legislation including the statutory instruments can be easily downloaded free of charge from the Internet and references are given accordingly. Similarly the Code of Practice on both the Mental Capacity Act and the supplement on Deprivation of Liberty Safeguards can be downloaded from the Ministry of Justice website.
A basic guide to the statutory provisions is set out in the first chapter. Each chapter setting out the basic provisions includes a series of scenarios dealing with practical concerns, which are discussed in the light of the new legislation. The aim of these scenarios is to show how the many facets of the Act and the regulations apply. Earlier cases are cited to illustrate how the new statutory provisions are likely to change or continue existing practice. In addition an extensive glossary and list of abbreviations are included to assist the reader who is not conversant with the law and its terminology. A list of useful websites is included for further information to be accessed. There is also a chapter dealing with some of the differences in Wales which sets out briefly the situation in Scotland and Northern Ireland. Scotland has its own Adults with Incapacity Act 2000, which came into force during the drafting of the provisions for the rest of the United Kingdom and undoubtedly had a strong influence on these. Northern Ireland is in the process of enacting a Mental Capacity Bill. Unfortunately space does not permit full coverage of these provisions. They each deserve a book in their own right.
The aim of the book is to make the law clearer and more understandable to the health and social services professional and to the informal carers. Inevitably as the Act is implemented, disputes over interpretation and application arise, which in turn has led to a body of case law on its interpretation. In the case of Deprivation of Liberty Safeguards, there is likely to be new legislation to overcome what have been seen as labyrinthine provisions. This work is aimed at providing a useful foundation for an understanding of the law protecting those adults who lack mental capacity to make specific decisions, and due to the speed of changes in this area, a website linked to the book is available at www.blackwellpublishing.com/dimond to highlight major developments.
In writing this book, I have had my nephew, a registered nurse for those with learning disabilities, very much in mind, and it is to him that this book is dedicated.
In addition to those whose help I acknowledged in the first edition, namely, Tessa Shellens and her colleagues, Penny Llewellyn, Gareth Barclay, Susan Elsmore, Peter Lawler, Dave Tomlin, Hugh Davies and Austin Dorrity, I would also like to thank Sian Catt, John Harvey, and Robert Jenkins. The copyright of The Stationery Office for Statutes and Statutory Instruments and of the various publishers for law reports is also acknowledged as is the permission from 39 Essex Street Chambers to quote their comments on the Cheshire West Supreme Court decision.
I also wish to put on record my indebtedness to my family for their unceasing encouragement and in particular to Bette for her painstaking indexing of cases, statutes, and contents and her invaluable and constant support.
A, B and C v. X, Y and Z [2012] EWHC 2400 COP
AA (Re) [2012] EWHC 4378 COP
A and B v. East Sussex County Council [2003] EWHC 167 Admin
AB v. LCC (A Local Authority) [2011] EWCOP 3151
AB (Re) [2013] EWHC 839 COP
ACCG v. MN [2013] EWHC 3850 COP
A County Council v. MB and Others [2010] EWHC 2508 COP
A Healthcare Trust v. P and Q [2015] EWCOP 15
A Hospital NHS Trust v. S. DG (S’s father) and SG (S’s mother), [2003] EWHC Fam 365
Aintree University Hospitals NHS Foundation Trust v. James [2013] UKSC 67
Airedale NHS Trust v. Bland [1993] 1 All ER 821
AJ v. A Local Authority [2015] EWCOP 5
AK (Re)(gift application) [2014] EWHC B11 COP
Alcock v. Chief Constable of the South Yorkshire Police [1992] 2 AC 310 HL
A Local Authority v. Mr and Mrs D [2013] EWCOP B34
A Local Authority v. SY [2013] EWHC 3485 COP
A Local Health Board v. AB [2015] EWCOP 31
A London Authority v. E and Others [2012] EWCOP 1639
A London Authority v. K [2013] EWHC 242 COP
A London Borough v. BB and Others [2011] EWHC 2853 Fam
AM v. South London and Maudsley NHS Foundation Trust and Anor [2013] UKUT 0365
A NHS Trust v. D [2012] EWHC 885 and 886
A NHS Trust v. DE [2013] EWHC 2562
A NHS Trust v. Dr A [2013] EWHC 2442 COP
A NHS Trust v. (1) K (2) Another Foundation Trust [2012] EWHC2292 COP
A NHS Trust v. L and Others [2013] EWHC 4313 Fam
A PCT v. LDV, CC and B Healthcare Group [2013] EWHC 272
A (Re) [2015] EWCOP 46
A (Re) (male sterilisation) [2000] 1 FLR 549
Ashan v. University Hospital Leicester NHS Trust [2006] EWHC 2624
Aster Healthcare Ltd v. The Estate of Mr Mohammed Shafi [2014] EWHC 77 QB
Ashley and Another v. Chief Constable of Sussex Police, TLR 30 August 2006 CA
Barnett v. Chelsea HMC [1968] 1 All ER 1068
B Borough Council and Mrs S and Mr S [2006] EWHC 2584 Fam)
Bedford Borough Council v. (1)Mrs LC and (2) Mr LC [2015] EWCOP 25
Bellinger v. Bellinger [2003] UKHL 21; [2003] 2 WLR 1174
B Local Authority v. RM [2010] EWHC 3802
BM (Re), JB v. AG [2014] EWCOP B20
Bolam v. Friern Barnet HMC [1957] 2 All ER 118; 1WLR 582
Bradbury and Others v. Paterson and Others [2014] EWHC 3992
B (Re) (a minor) (wardship, sterilization) [1987] 2 All ER 206
B (Re) (consent to treatment: capacity) [2002] 2 All ER 449
Broadway Care Centre Ltd R (on the application of) v. Caerphilly CBC [2012] EWHC 37
Buckley(Re) [2013] COPLR
C v. A Local Authority [2011] EWHC 1539 Admin
Cardiff County Council v. Ross and Davies unreported case 1206 3905, October 28 2011
CC v. KK [2012] EWHC 2136 COP
Cheshire West and Chester Council v. P [2011] EWHC 1330 Fam
Chester v. Afshar [2004] UKHL 41
City of Sunderland v. PS [2007] EWHC 623 Fam
Clarke (Re) [2012] 2256 COP; 2714 and 1974
Commissioner of Police for the Metropolis v. DSD and NBV v. Ors [2015] EWCA Civ 646
CP (a child) v. First Tier Tribunal (CIC) [2014] EWCA Civ 1554
C(re) (an adult) (refusal of medical treatment); [1994] 1 All ER 819
C (Re) (withdrawal of treatment) [2010] EWHC 3448
D v An NHS Trust (medical treatment: consent: termination) [2004] 1 FLR 1110
D v East Berkshire Community Health NHS Trust and Another TLR, 22 April 2005 HL
D v. R (Deputy of S) and S [2010] EWHC 2405
D (a child) (deprivation of liberty) [2015] EWHC 922 Fam
Das, R (on the application of) v. Secretary of State for Home Office [2014] EWCA Civ 45
Day and Others v. Royal College of Music and Harris [2013] EWCA Civ 191; [2012] EWHC 2014]
D Borough Council v. B [2012] EWHC 101 Fam
DE and An NHS Trust [2013] EWHC Fam 2562
DE (Re) (male) EWHC 2562 Fam
DE (Re) (an adult patient) JE and Surrey CC [2006] EWHC 3459
Denis Michael Seaton and Others v. Anthony Seddon and Others [2012] EWHC 735 Ch
DH NHS Foundation Trust v. PS [2010] EWHC 1217
DL v. A Local Authority [2012] EWCA Civ 253
Donoghue v. Stevenson; [1932] AC 562
DP (Re) (revocation of LPA) [2014] January 24 2014 COP case no 12351387
D (Re) v. Barnet Healthcare NHS Trust and Another [2000] EWCA Civ 3027
D (Re) (statutory will): VAC v. JAD and Others [2010] EWHC 2159
Dunhill v. Burgin TLR March 28 2014 SC; [2014] UKSC 18
Dunnage v. Randall and UK Insurance Ltd [2015] EWCA Civ 673
Ealing London Borough Council v. KS [2008] EWHC 636
EG v. RS, JS and BEN PCT [2010] EWHC 3073
EU (Re) [2014] EWCOP 21
E (Re) (N and Another) v. E and Others [2014] EWCOP 27
Essex County Council v. RF and Others [2015] EWCOP 1
F v. West Berkshire Health Authority [1989] 2 All ER 545; [1990] 2 AC 1
FP v. HM and A Health Board [2011] EWHC 2778
F(re) (mental patient: sterilisation) [1990] 2 AC 1
Frenchay NHS Trust v. S, [1994]2 All ER 403
GC (Re) [2008] EWHC 3402 Fam
Gillick v. West Norfolk and Wisbech AHA and the DHSS; [1985] 3 All ER 402
GJ v. The Foundation Trust and Anor [2009] EWHC 2972 Fam
GM (Re) [2013] EWHC 2966
G (Re) [2011] WTLR 231
G (Re) (TJ) [2010] EWHC 3005
Great Western Hospitals NHS Foundation Trust v. AA, BB, CC, DD [2014] EWHC 132 Fam
Gregg v Scott, TLR 28 January 2005 HL [2005] UKHL 2
Guzzardi v. Italy (1980) 3 EHRR 333; Ashingdane v. UK (1985) 7 EHRR
GW (Re) London Borough of Haringay v. CM [2014] EWCOP B23
Harcourt (Re) July 31 2012 unreported (account taken from 39 Essex St)
Hawes v. Burgess [2013] EWCA Civ 74
HC (Re) [2015] EWCOP
HE v. NHS Trust A and AE [2003] EWHC 1017 Fam
Hillingdon London Borough Council v. Neary [2011] EWHC 413 COP
HL v. UK (application No 45508/99) TLR, 19 October 2004 (2005); [2005] Lloyd’s RM
HN v. FL and Hampshire County Council [2011 EWHC 2894
HT v. CK [2012] EWCHC 4160 COP
Hulme v DPP [2006] EWHC 1347; (2006) 170J598
Hunt v. North Somerset Council [2015] UKSC 51
Hunter v Hanley [1955] SLT 213
IM v. LM and Others [2014] EWCA Civ 478
ITW v. Z and M and Others [2009] EWHC 2525
Ivinovic v. Croatia [2014] ECHR 964
J (C) (Re) [2012] WTLR 121
JDS (Re) unreported case no 10334473 January 19 2012
JL (revocation of LPA) [2014] EWCOP
J (Re) 6 December 2010 unreported (account taken from 39 Essex St)
JS v. KB and MP (Property and Affairs Deputy) [2014] EWHC 483 COP
JX, MX, v. Dartford and Gravesham NHS Trust [2015] EWCA 96
K v. LBX [2012] EWCA Civ 79
K (Re); F (Re) [1988] 1 All ER 358
KW and Others v. Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054
KS (Re) unreported May 17 2010
LG v. DK [2011] EWHC 2453
Ligaya Nursing v. R [2012] EWCA Crim 965
Lindsay v. Wood QBD, TLR 8 December 2006
Liverpool City Council v. SG and Ors [2014] EWCOP 10
Liverpool Women’s Hospital NHS Foundation Trust v. Ronayne [2015] EWCA Civ 588
Local Authority v. Mrs D and Anor [2013] EWCOP f74
London Borough of Haringey v. FG and Others (No 1) [2011] EWHC 3932 COP
London Borough of Haringey v. FG and Others (No 2) [2011] EWHC 3933 COP
London Borough of Havering v. LD [2010] EWHC 3876
M, N, O and P (Re) January 28 2013
M (adult) [2015] EWCA Civ 411
Malette v. Shulman; [1991] 2 Med LR 162
Mark Reeves (Re) January 5 2010, unreported case no 99328848
Maynard v. W. Midlands RHA; [1984] 1 WLR 634; [1985] 1 All ER 871
MB(re) (adult medical treatment) [1997] 2 FLR 426
McLoughlin v. O’Brian [1982] 2 All ER 298
Mental Health NHS Foundation Trust and Others [2015] UKUT 36 (AAC)
Mental Health Trust, the Acute Trust and the Council v. DD and BC [2015] EWCOP 4
Milton Keynes Council v. RR, SS and TT Ors [2014] EWCOP B19
Montgomery v. Lanarkshire Health Board [2015] UKSC 11
M (Re) [2011] EWHC 3590
M (Re) (best interests: deprivation of liberty) [2013] EWHC 3456 COP
M (Re) (medical treatment: consent) [1999] 2 FLR 1097
MRJ (Re) (reconsideration of an order) [2014] EWHC 815 COP
MH v. UK [2013] ECHR 1008
NCC v. PB and TB [2014] EWCOP 14
NHS Trust v. L and Others [2012] EWHC 2741 COP
NHS Trust v. Mr and Mrs H and Others [2012] EWHC B18 Fam
NHS Trust A v. H [2001] 2 FLR 501
NHS Trust and Ors v. FG (Rev 1) [2014] EWCOP 30
Newcastle City Council v. PV and CICA [2015] EWCOP 22
Newcastle-upon-Tyne Hospitals Foundation Trust v. LM [2014] EWCOP 454
Nicklinson v. Ministry of Justice and Others [2012] EWHC 304
Nicklinson and Anor R (on the application of) (Rev 1) [2014 UKSC 38
Nottinghamshire Healthcare NHS Trust v. RC [2014] EWCOP 1317
NT v. FS and Others [2013] EWHC 684
Page v. Smith [1996] HC 155
P and Q (by their litigation friend the OS) (appellants) v. Surrey County Council (respondent) [2011] EWCA Civ 190; [2012] Fam 170; [2014] UKSC 19
P (by his litigation friend the OS) v. Cheshire West and Chester Council and Anor [2011] EWHC 1330 Fam; [2011] EWCA Civ 1257; [2012] PTSR 1447
Peters v. East Midland SHA and Others [2009] EWCA Civ 145
PC and NC v. City of York [2013] EWCA Civ 478
PCT v. P, AH and A Local Authority [2009] COPLR Con Vol 956
PH v. A Local Authority and Z Ltd and Another [2011] EWHC 1704
P (Re) [2010] EWHC 1592 Fam
P (Re) (a child) [2013] EWHC 4048
PS and LP [2013] EWHC 1106 COP
PS (Re) (an adult) and the City of Sunderland [2007] EWHC 623 Fam
Public Guardian v. AW and DH [2014] EWCOP 28
Public Guardian v. CT and EY [2014]
Public Guardian v. Marvin [2014] EWCOP 47
R v. Adomako [1995] 1 AC 171; [1994] 3 All ER 79
R v Bodkin Adams; [1957] Crim LR 365
R v Bournewood Community and Mental Health NHS Trust ex p L [1998] 3 All ER 289
R v. Cooper [2009] UKHL 42
R v. Dunn [2010] EWCA Crim 2935
R v. Heaney [2011] EWCA Crim 2682
R v. Hopkins: R v. Priest [2011] EWCA Crim 1513
R v. Patel [2015] EWCA Crim 965
RB v. Brighton and Hove Council [2014] EWCA Civ 561
R (David Tracey) v. Cambridge University NHS Foundation Trust and Others [2014] EWCA Civ 33
RGB v. Cwm Taf Health Board and Others [2013] EWHC B23 COP
RGS (No 3) [2014] EWHC B12 COP
RGS (Re) No 2 unreported COP case 11831647, July 19 2013
R (MH) v. Secretary of State for Health [2004] EWCA Civ 1609; [2005] UKHL 60; [2013] ECHR 1008
R (N) v. Dr M and Others, TLR December 12 2002 CA
R (Nicklinson) v. Ministry of Justice; R (AM) v. DPP, TLR June 26 2014 SC
Robshaw v. United Lincolnshire Hospitals NHS Trust [2015] EWHC 923
Rochdale Metropolital BC v. KW and Others [2014] EWCOP 45
Rodman (Re) [2012] EWHC 347
R (on the application of Burke) v GMC and DRC [2004] EWHC 1879
R (on the application of Grogan) v Bexley NHS Trust [2006] EWHC 44 (2006) 9 CCL 188
R (on the application of Munjaz) v. Mersey Care NHS Trust [2006] UKHL 58
R (on the application of Pretty) v DPP [2001] UKHL 61; [2001] 3 WLR 1598
R (on the application of Purdy) v. DPP [2008] TLR November 17 2008
Rose and Another v S of S for Health and the HFA [2003] EWHC 1593
R (Tracey) (on the application of) v. Cambridge University Hospitals NHS Trust and Others [2012] EWHC 3670
R (W) v. London Borough of Croyden [2011] EWHC 696 Admin
S v. Croatia (No 2) [2015] ECHR 196
Sandwell and West Birmingham Hospitals NHS Trust v. CD and Others [2014] EWCOP 23
SA (Re) (vulnerable adult with capacity: marriage) [2005] EWHC 2942 Fam
S Borough Council v. PBA [2011] EWHC 2580
SB(Re) [2013] EWHC 1417 COP
S County Council v. JM and Others August 21 2012
Sheffield City Council v. E [2004] EWHC 2808 Fam
Shtukaturov v. Russia [2012] 54 ECHR 27
Sidaway v. Bethlem Royal Hospital Governers and Others [1985] 1 All ER 643
Simon v. Byford [2014] EWCA Civ 280
Somerset v. MK [2014] EWCOP B25
S (Re) [2003] 1 FLR 292
S (Re) (adult’s lack of capacity: carer and residence) [2003] FLR 1235
S (Re) and S [2008] COPLR Con Vol 1074
St George’s Healthcare NHS Trust v. P and Q [2014] EWCOP 59
St George’s NHS Trust v. S; [1998] 3 All ER 673
Strunk v. Strunk (1996) 445 SW 2d 145 (Ky CA)
Suffllk County Council v. JU and Another [2014] EWCOP 21
TA v. AA Knowsley [2013] EWCA Civ 1661
Tameside & Glossop Acute Services Trust v. CH; [1996] 1 FLR 762
T(re) (an adult) (refusal of medical treatment) [1992] 4 All ER 649; [1993] Fam 95
Trust A and Trust B v. H (an adult patient) [2006] EWHC 1230
UF (Re) [2013] EWHC 4289 COP
United Lincolnshire Hospitals NHS Trust v. N [2014] EWCOP 16
W v. M [2011] EWHC 2443 COP
Wandsworth CCG v. LA and TA [2014] EWCOP 990
W City Council v. Mrs L [2015] EWCOP 20
Westminster City Council v. Sykes [2014] EWCOP B9
W Healthcare NHS Trust v. H [2004] EWHC Civ 1324
White v. Chief Constable of S Yorkshire Police & Others; [1999] 1 All ER 1 HL
Wilsher v. Essex Area Health Authority HL; [1988] 1 All ER 871
Winterwerp v. Netherlands 6301/73 [1979] ECHR 4
Woodland v. Essex County Council [2013] UKSC 66
W(Re) (a minor) (medical treatment) [1992] 4 All ER 627
X v. A Local Authority and an NHS Trust [2014] EWCOP 29
X v. UK [1981] 7215/75 ECHR 6, EHRR 188
X, Y and Z (Re) [2014] EWHC 87 COP
X County Council v. AA [2012] EWHC 2183
X County Council v. M and Others [2014] EWHC 2262 Fam
X Local Authority v. MM (Re) [2007] EWHC 2003 Fam; [2003] 1 FLR 443
X London Borough v. KL and M [2013] EWHC 3230 Fam
X PCT v. XB and YB [2012] EWHC 1390 Fam
X (Re) and Others (deprivation of liberty) [2014] EWCOP 25
X (Re) (Court of Protection Practice) [2015] EWCA Civ 599
XY v. Public Guardian [2015] EWCOP 35
YA v. CWL NHS Trust [2015] UKUT 37 (AAC)
YL v Birmingham City Council HL, TLR, 21 June 2007
Y(re) (adult patient) (transplant & bone marrow) [1997] Fam 110; [1997] 2 WLR 556
Zarbafi and Others v. Zarbafi [2014] EWCA Civ 1267, TLR November 3 2014
ZH v. Commissioner of Police for the Metropolis [2013] EWCA Civ 69
Adults with Incapacity (Scotland) Act 2000
Care Act 2014
Carers (Recognition and Services) Act 1995
Carers and Disabled Children Act 2000
Children Act 1989
Enduring Powers of Attorney Act 1985
Equality Act 2006
Equality Act 2010
Family Law Act 1986
Family Law Reform Act 1969
Gender Recognition Act 2004
Health and Social Care Act 2008
Human Fertilisation and Embryology Act 1990
Human Rights Act 1998
Article 2
Article 3
Article 4
Article 5
Article 6
Article 8
Article 9
Article 10
Article 14
Human Tissue Act 2004
Insolvency Act 1986
Juries Act 1974
Law of Property Act 1925
Matrimonial Causes Act 1973 S.12(c)
Mental Capacity Act 2005
S.1
S.2
S.3
S.4
S.4A and 4B
S.5
S.6
S.7
S.8
S.9
S.10
S.11
S.12
S.13
S.14
S.15
S.16
S.16A
S.17
S.18
S.19
S.20
S.21A
S.22
S.23
S.24
S.25
S.26
S.27
S.28
S.29
Ss.30–34
Ss.35–41
S.39A–E
S.42
S.43
S.44
S.51
S.52 and 53
S.58
S.59
S.62
S.64
Mental Health Act 1983
S.2
S.2
Ss.37, 38, 39
Ss.57, 58, 62, 63
S.117
S.131
Mental Health Act 2007
Ss.16A and 21A
S.43
National Assistance Act 1948
Police and Criminal Evidence Act 1984
Political Parties Elections and Referendums Act 2000 S.101
Powers of Attorney Act 1971
Safeguarding Vulnerable Groups Act 2006
Sexual Offences Act 2003 S.30
Suicide Act 1961
Trustee Act 1925 S.68