Mental Capacity Guidance Notes

Professionals have to have regard to the Codes of Practice to the Mental Capacity Act 2005.   However, they can – and should – depart from them where they have been superseded by case-law which makes clear what the Act itself, the source of the law means. We have therefore prepared this entirely unofficial guide to those parts of the two Codes which are most obviously out of date

This guidance document is intended to provide supervisory bodies and DoLS assessors with some guidance on the equivalent assessment process which has been available ever since DoLS was brought into force in 2009. The process has assumed greater importance since Cheshire West, owing to the ever-increasing demand for these safeguards in a context where over 123,500 people are deprived of liberty without any.  To streamline the process and avoid unnecessary duplication, Sch A1 MCA 2005 includes a provision for using equivalent assessments – essentially relying upon existing assessments – instead of reassessing a situation which would in all likelihood only [...]

This guidance note provides those who have to consider best interests with an overview of the relevant law and principles. Its focus is on: (a) how to apply the MCA 2005 principles when assessing best interests; and (b) how to record your assessment, primarily in the context of health and welfare decisions. Download the guidance note below. It is a companion to our guide to carrying out capacity assessments, available HERE.  

This purpose of this document is to provide for social workers and those working in front-line clinical settings an overview of the law and principles relating to the assessment of capacity. Its focus is on (a) how to apply the MCA 2005 principles when assessing capacity; and (b) how to record your assessment, primarily in the context of health and welfare decisions. Download the guidance note below. Click HERE to read the note setting out the types of information that the courts have identified as relevant (and irrelevant) to the key categories of decision that arise most frequently, such as [...]

In these two documents, Adrian Ward sets out the core provisions of Scottish incapacity law. Download below.

This guidance note provides for social workers and those working in front-line settings an overview of the inherent jurisdiction of the High Court as it applies to adults. It sets out (a) when it is appropriate to seek to obtain orders from the High Court; and (b) key procedural matters relating to such applications. Please click here to download the guidance note.  

This guidance note sits alongside our guidance note on carrying out and recording capacity assessments, and is designed to assist social workers and those working in frontline clinical settings when they asked to consider a person’s capacity to make a decision or decisions. As set out in our guidance note, the courts have now applied the MCA 2005 in respect of very many types of decision. In the course of doing so, they have given indications as to what they consider to be relevant (and sometimes irrelevant) information for purposes of those decisions – i.e. what the person must be [...]

The former Children's Commissioner for England has identified a growing number of "locked up" children who do not appear in official statistics whilst an ongoing national shortage of appropriate secure accommodation and registered children's homes has resulted in some High Court judges refusing to authorise wholly inappropriate deprivations of liberty in hospitals. We have produced guidance to help practitioners navigate the complex waters relating to deprivation of liberty relating to those under 18, complexity arising both from the substantive law (how does the concept of deprivation of liberty apply to those under 18?) and procedural law (how should deprivations of [...]

The Court of Protection team has been asked to advise on a number of occasions as to the legal position in relation to vaccination for COVID-19.  They have prepared, and regularly update, a guidance note which is general discussion, as opposed to legal advice on the facts of individual cases. It primarily relates to the position in England in relation to those aged 18 and above; specific advice should be sought in respect of Wales and those under 18. Click HERE to read the guidance note,

This guide provides guidance as to the process for applying for judicial authorisation of deprivation of liberty, including the requirements set down in the COP DOL11 form.  It was last updated in July 2022. To read the guidance note, please click here.