Incapacity – history and development

Incapacity is relevant to social services authorities in a number of ways. Many authorities have decided on a policy whereby they require the explicit consent of an individual before a care plan is activated. This will not be possible in cases of severe impairment or severe learning disability, because the proposed clients will not be regarded as capable, in law, of consenting to the intervention in their lives.


Secondly, when dealing with the elderly suffering from dementia, young adults with learning disabilities, and those who have suffered a brain injury, authorities will in practice take instructions and advice from relatives and carers, regardless of the fact that such people have no legal power to determine the welfare of adult disabled people.


This is not a problem when there is no question of abuse of position, but the social care charging framework often puts those who may be exhausted carers, or just the client’s next of kin, or the intended beneficiaries of the wills of the users concerned, in a stark conflict of interest – over the acceptance of homecare services or the movement of the service user to residential accommodation, which will have to be paid for.


The existing state of the law suggests that neither the authority nor the relatives have a definitive legal right to take steps which would amount to a trespass or assault to the person who is incapable of consenting thereto, such as a removal to a residential home; no power, that is, in the absence of having taken out guardianship under the Mental Health Act 1983, which now confers a power to act in the best interests of a person.


Incapacity is also relevant to the determination of ordinary residence, and hence which authority is liable for the cost of care. The statutory provisions relevant here, and government guidance, suggest that the placing authority remains liable for residential care costs, (even if the placement is out of county), for as long as the National Assistance Act contract for care made with the home owner continues (this may be terminated, if the resident’s home is sold, making him or her a fully self-funding client, under a private arrangement, for instance). But an incapacitated client may lack the capacity to contract in his or her own name for a continuation of the provision of care; and it is impossible to suggest that they have voluntarily taken a decision to move from one authority to another. In such a situation the original authority may not be able to withdraw from responsibility for making the contractual arrangements.


Problems of a financial nature arising from incapacity may be resolved by Receivership or Appointeeship or by the giving of an enduring power of attorney (the last, only during the competence of the donor). None of those regimes, however, provides any legal authority to determine where it is best for a person to live, even if the person makes a contract for the person’s maintenance. ; such agents only have the powers granted by the statutory regimes, and they are restricted to management of the property and financial affairs of the individuals, or the social security benefits, not their personal welfare. That said, a Receiver and an Attorney with an enduring power do have the right to pay the bills of anyone who has provided an incapacitated person with necessaries such as accommodation and personal care and they can reimburse themselves from the incapacitated person’s assets.


An assessment of Mental Incapacity is crucially relevant to the question when Guardianship may become necessary and warranted under the statutory test in s7 of the Mental Health Act. Mental incapacity might not warrant detention under a compulsory section, but the vulnerability or serious inability to act in a manner thought to be responsible, which may be associated with mental impairment, could certainly be thought to warrant the kind of benign supervision for which Guardianship can now be used . Moreover, we suspect that an opinion as to the incapacity of candidates for guardianship may be the only thing which makes the regime consistent with a person’s human rights to respect for privacy, family life, and the home, and freedom from inhuman or degrading treatment.


It should be noted that the Code of Practice for the Mental Health Act has undergone change and the more modern wording should reduce the logical inconsistency in the current code, between the suggestion still made in places that the regime is really only appropriate if the patient is willing to accept the authority of the guardian, and the basic requirement that the ASW thinks that a compulsory regime is necessary. The Marston case suggests that once guardianship has been taken out, the guardian has implied power to act to promote the best interests of the individual, overriding their perceived wishes if necessary, and going beyond the three explicit statutory powers given to the guardian by s8 Mental Health Act.


Set out below in the free access part of this site is the DH~s 12 point summary for consent and health care matters:

When do health professionals need consent from patients?

  1. Before you examine, treat or care for competent adult patients you must obtain their consent.
  2. Adults are always assumed to be competent unless demonstrated otherwise. If you have doubts about their competence, the question to ask is: can this patient understand and weigh up the information needed to make this decision? Unexpected decisions do not prove the patient is incompetent, but may indicate a need for further information or explanation.
  3. Patients may be competent to make some health care decisions, even if they are not competent to make others.
  4. Giving and obtaining consent is usually a process, not a one- off event. Patients can change their minds and withdraw consent at any time. If there is any doubt, you should always check that the patient still consents to your caring for or treating them.

Can children consent for themselves?

  1. Before examining, treating or caring for a child, you must also seek consent. Young people aged 16 and 17 are presumed to have the competence to give consent for themselves. Younger children who understand fully what is involved in the proposed procedure can also give consent (although their parents will ideally be involved). In other cases, someone with parental responsibility must give consent on the child’s behalf, unless they cannot be reached in an emergency. If a competent child consents to treatment, a parentcannotover ride that consent. Legally, a parent can consent if a competent child refuses, but it is likely that taking such a serious step will be rare.
  2. It is always best for the person actually treating the patient to seek the patient’s consent. However, you may seek consent on behalf of colleagues if you are capable of performing the procedure in question, or if you have been specially trained to seek consent for that procedure.
  3. Patients need sufficient information before they can decide whether to give their consent: for example information about the benefits and risks of the proposed treatment, and alternative treatments. If the patient is not offered as much information as they reasonably need to make their decision, and in a form they can understand, their consent may not be valid.
  4. Consent must be given voluntarily: not under any form of duress or undue influence from health professionals, family or friends.
  5. Consentcanbe written, oral or non-verbal. A signature on a consent form does not itself prove the consent is valid – the point of the form is to record the patient’s decision, and also increasingly the discussions that have taken place. Your Trust or organisation may have a policy setting out when you need to obtain written consent.
  6. Competent adult patients are entitled to refuse treatment, even where it would clearly benefit their health. The only exception to this rule is where the treatment is for a mental disorder and the patient is detained under theMental Health Act 1983. A competent pregnant woman may refuse any treatment, even if this would be detrimental to the foetus. A delusional pregnant woman cannot.
  7. No-onecan give consent on behalf of an incompetent adult. However, you may still treat such a patient if the treatment would be in their best interests. The consideration of Best interests goes wider than best medical interests, to include factors such as the wishes and beliefs of the patient when competent, their current wishes, their general well- being and their spiritual and religious welfare. People close to the patient may be able to give you information on some of these factors. Where the patient has never been competent, relatives, carers and friends may be best placed to advise on the patient’s needs and preferences.
  8. If an incompetent patient has clearly indicated in the past, while competent, that they would refuse treatment in certain circumstances (an advance refusal), and those circumstances arise, you must abide by that refusal (subject to the Mental Health Act provisions regarding treatment without consent).

For the latest DoH guidance on seeking consent from older people and people with learning disabilities, visit the DoH’s Consent page.


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