Mental incapacity and declaratory relief
| Date | 01 April 2004 |
| Pages | 35-38 |
| Published date | 01 April 2004 |
| DOI | https://doi.org/10.1108/14668203200400006 |
| Author | Alison Brammer |
| Subject Matter | Health & social care,Sociology |
Legal column
The Journal of Adult Protection Volume 6 Issue 1 • April 2004 © Pavilion Publishing (Brighton) Limited 35
There is considerable confusion about the existing law
relating to mental capacity and it is a very difficult area of
practice. It is important to remember at the outset that in law
there is a presumption in favour of capacity – capacity being
the ability to make and communicate a reasoned and
informed decision. The capacity required will depend on the
nature of the decision being taken. For example, greater
capacity is required to manage financial and property affairs
than to marry! After considerable delay the government
published a Draft Mental Incapacity Bill in June 2003 (an
outline of the content of the Bill will appear in the next
issue). Once implemented it will provide a clear legal
framework for decision making on behalf of individuals
lacking mental capacity. In the meantime, the question ‘Who
can make a decision on behalf of an individual who lacks
mental capacity to make that decision him/herself?’ remains
problematic.
It is clearly established in law that ‘next of kin’ do not have
decision-making rights, though this may be assumed by some
relatives of adults lacking capacity. Relatives and next of kin
may, however, have an important contribution to make in
providing information which enables a decision to be made in
the ‘best interests’ of an adult without capacity. This is most
likely to arise in a medical situation where treatment or an
operation is considered necessary and the patient is unable to
provide a valid consent.
Existing law only permits formal delegation of decision
making through recourse to the Court of Protection and use
of Enduring Powers of Attorney, in relation to financial and
property affairs. A litigation friend may be appointed to
defend or instigate legal proceedings on behalf of the
incapacitated individual. For all other types of decision,
including medical, social and welfare, a legal loophole exists
whereby it is not possible formally to delegate decision
making to another individual. Declaratory relief has been
developed by the courts to fill that gap in the law.
Mental incapacity and
declaratory relief Alison Brammer
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