Recent news that two adults with learning disabilities were prevented for marrying for over a year has highlighted the sensitive nature of decisions made using the Mental Capacity Act 2005 (MCA).  Sarah Thompson Drayton, who has a learning disability, was subjected to a mental capacity assessment against her wishes to decide if she was sufficiently able to have sexual relations and get married. The assessment was instituted by her local authority adult social care team.  She failed the assessment and her local authority only changed their mind following intervention from MENCAP, the mental health charity.

Sarah’s mother commented :

“My daughter had a right to fall in love like anyone else”.

The case, sadly, illustrates a lack of understanding of the MCA.

In March 2014 a House of Lords Select Committee published a report on the MCA and concluded “its implementation has not met the expectations that it rightly raised … the rights conferred by the Act have not been realised”.  The report made 39 recommendations, to which the government have responded this month.  It is acknowledged that understanding of the MCA and its framework is low amongst the public.  An optimistic wish is expressed by the government in their response to the report:

“We encourage all professionals working with individuals who may lack capacity to make the most of the opportunity … to raise awareness and understanding of the MCA in their organisations”.

At any one time more than 2 million people living in England lack the capacity to make certain decisions.  The 5 principles of the MCA are: –

• A person must be assumed to have capacity unless it is established that they lack capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps to help him/her have been taken without success.
• A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.
• An act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his/her best interests.
• Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

MENCAP is concerned that there is a lack of understanding of the MCA by many professionals who work with individuals who may lack capacity.  An assumption may be made that because someone has a learning disability, they automatically lack the capacity to make decisions such as whether or not to marry.   Article 8 of the Human Rights Act establishes the right to respect for a private and family life. The MCA enshrines that right and reflects a more nuanced approach to capacity than the past, more paternalistic approach.

Sarah Young, Partner with Ridley and Hall solicitors, comments:

“The Act does have a vital role to play in protecting vulnerable members of society from abuse.  The Court of Protection plays an important role in safeguarding the rights of people who lack capacity, both in terms of their health and welfare and also property and financial affairs.  Cases that come before the Court of Protection are, by their very nature, extremely sensitive and often complex, so newspaper headlines can be misleading.”

She adds: “The MCA came into force in 2007 and so it’s only been part of the legal landscape for 7 years.  Much work remains to be done to embed the principles of the Act culturally –  and in the meantime care should be taken by anyone working professionally or involved personally with individuals who may lack mental capacity, to ensure that their rights are protected by the State.”

Sarah Young is a Partner with Ridley and Hall solicitors LLP and specialises in will disputes, cases involving missing people and the Court of Protection. Sarah offers practical, friendly and cost effective advice.  She understands the sensitive nature of cases which often involve disputes between families and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or mobile 07860 165850.