Capacity & Children

04 Aug 2014

Parents of vulnerable children will find themselves embroiled in a world of care and/or medical decisions that in some cases will have to be taken on a daily basis. Over time they will develop an understanding of the complexity of their child’s unique medical and care needs. They will be consulted by all professionals involved in their child’s care, placing them, justifiably in a position of authority when best interest decisions are taken on their child’s behalf. This situation will often continue uneventfully for many years, but what happens when that child becomes an adult? Who can make decisions on their behalf then?

Some parents continue to care for their child without even considering the possibility that they cannot take decisions on their child’s behalf while the other extreme panic when their child approaches their 18th birthday and seek legal advice as to how to ensure that their parental rights can carry on unabated into their child’s adulthood.

The first point to note is that there are safeguards in place to enable carers to make decisions regarding the care and wellbeing of the person they care for. These are primarily in place to protect carers from prosecution where they have either taken action or chosen not to take a particular action when acting in the best interests of a vulnerable adult. This is necessary as imposing treatment or care on an individual without their consent can lead to criminal prosecution. The relevant legislation can be found in the Mental Health Act 1983 and The Mental Capacity Act 2005. This legislation has the secondary, beneficial effect of preventing the Court of Protection being overwhelmed with applications relating to the provision of basic care needs for the many vulnerable adults in the UK.

The COP will only need to be consulted in the most extreme cases. These are where a vulnerable adult has health and or care needs which require a series of linked decisions to be made by one appointee to ensure consistency of care or where there is a one of decision to be made which presents a serious risk to health or personal welfare.  Such cases will include refusal of treatment or treatment plans for those with the most complex of care needs, generally involving multiple illnesses or injuries. The Court is reticent to remove rights from anyone in respect of their health and personal welfare and will only do this in the most extreme of cases. In 2010 approximately 70% of applications for health and personal welfare deputyships were refused with only 106 appointments.  The Court appears to prefer to allow the Mental Health Act to protect carers and vulnerable adults alike and only make appointments of deputies or Orders in respect of health and personal welfare when all other options have been exhausted.

It will surprise many parents to know that the Mental Capacity Act 2005 applies to those over the age of 16 rather than 18 (18 being the age that we are all considered to have full legal capacity however at 16 we have limited legal capacity). Once a vulnerable adult has reached 16 the MCA will be referred to, to consider whether they have capacity to take the decision or not.  This recent case of NHS Foundation Trust v P [2014] EWHC 1650 (Fam)  illustrating this point. Here a 17 year old refused treatment following an overdose. Her parents and medical team wanted her to have the necessary treatment and an urgent application was made. The MCA applied as she was over 16; the psychiatrist who assessed her capacity was not satisfied that she lacked capacity on the information available at the time. This meant that the Court was able to override the girl’s wishes on the basis that while the opinions of a 17 year old are persuasive they are not decisive. The Court was therefore able to make an Order for her treatment as advised by the NHS trust.

Conversely if she had been assessed as lacking capacity under the MCA the outcome may have been different. She had a history of mental illness and had been diagnosed with a personality disorder. The reality of this being that she had periods of lucidity (which brought the consulting psychiatrist to his conclusions regarding mental capacity). Parallels could then be drawn against this case and that of Nottingham Healthcare NHS Trust v RC [2014] EWHC 1136  (COP) where an adult with a severe personality disorder refused a blood transfusion. This refusal would almost certainly lead to his death due to injuries caused by self-harming. The refusal was based on his religious beliefs which he had held throughout his life. He was therefore allowed to make this decision and a blood transfusion was not administered.  Arguably applying these principles may have led the Court to the alternate conclusion that treatment should be withheld in the case of P.