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Mental Incapacity Act 2005

House of Lords written question – answered on 10th February 2010.

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Photo of Lord Morris of Manchester Lord Morris of Manchester Labour

To ask Her Majesty's Government what response they will make to the representations made to the Parliamentary Under-Secretary of State at the Ministry of Justice, Bridget Prentice, by Richard S Jackson for RESCARE on 29 January on the interpretation and implementation of the Mental Incapacity Act 2005; and what action they will be taking on the issues raised.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Mr Jackson has raised concerns around the circumstances in which family members may be appointed as personal welfare deputies under the Mental Capacity Act 2005.

It is important to make clear that any decision to appoint a deputy in a given case is entirely a matter for the Court of Protection and will be taken based on the individual circumstances of the case. If an applicant is unhappy with the court's decision then they are at liberty to appeal.

In making any such decision, the court's powers are subject to the provisions of the Act and, in particular, to the principles of the Act and the requirement that any decision is in the best interests of the person concerned. The court must also have regard to the Act's requirements that a decision by the court is to be preferred to the appointment of a deputy and, where the appointment of a deputy is necessary, their powers should be as limited in scope and duration as is reasonably practicable.

The code of practice issued under the Act specifically advises that deputies in personal welfare cases will only be required in the most difficult cases, such as those involving important and necessary actions that cannot be carried out without the court's authority, or in situations where there is no other way of settling the matter in the best interests of the person who lacks capacity. In many cases the existing provisions of Section 5 of the Act will generally provide sufficient authority to make decisions in the best interests of the person lacking capacity without the need for a deputy to be appointed.

It was never the intention of the Act that personal welfare deputies would be routinely appointed without establishing to the court's satisfaction why the appointment is necessary and in the best interests of the person concerned.

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