Melinda Giles Mental Capacity Series: How the UK is leading the way in Mental Capacity Law

How the UK leads the way in Mental Capacity Law

This month is World Alzheimer’s Month – an international campaign to raise awareness and challenge the stigma attached to the disease. As we confront the reality of a growing global population with an increasing life expectancy, the importance of starting a worldwide conversation on the topic of Alzheimer’s has never been more apparent. At the forefront of that issue is the way in which we care, protect and empower those who may no longer be able to protect themselves.

In response to this topic, nations across the world have been questioning whether their own laws and legislations are sufficient in meeting the needs of those requiring support, especially when it comes to those that lack the mental capacity to make their own decisions. Notably, the statutory framework that many look toward as a benchmark for success is that of the UK’s Mental Capacity Act 2005. This ground-breaking framework was introduced to empower and protect vulnerable people who are incapable of making their own decisions. As a result, countries elsewhere have been looking to the Act as a reliable example of how the issue of Mental Capacity should be broached. 

Most recently, in July of this year, a new study published in New Zealand involved a comparative analysis of The Mental Capacity Act 2005 to that of New Zealand’s own Protection of Personal and Property Rights Act 1988. Conducted by barrister Alison Douglas – who specialises in health and disability law in New Zealand – the report established that much could be learned from how UK law has developed in this area, and that New Zealand’s own law by comparison was “inadequate to respond to the explosion of elder care and the needs of older adults”. The report highlighted the need for updates to the country’s mental capacity law and that “liberty safeguards” should be provided.

A major finding of the study was the issue of defining ‘capacity’ or the lack of thereof which would permit intervention in people’s lives. One particular aspect of The Mental Capacity Act 2005 that was recommended for adoption in New Zealand was a “single legal test” which defines a person as lacking capacity if they are “unable to make a decision due to an inability to understand information relevant to the decision, retain that information, use or weigh up that information, or communicate the decision.”

Still work to be done

Whilst it is evident from this that aspects of the Act are ripe for adaption across the globe, it is certainly not infallible. In 2014, the Act was scrutinised in a House of Lords Select Committee report, which concluded that while its principles are well supported, measures are needed to improve poor understanding and implementation of the empowering ethos of the Act – some people who are capable of supported decision making are instead subjected to the decisions of others.

Our senior partner Melinda Giles was part of the Roundtable discussion back in May 2016 discussing how the Mental Capacity Act could be better applied in a number of settings. Led by Baroness Finlay, Chair of the National Mental Capacity Forum, this meeting raised important insights into the improvement of this act to help and enable those with mental capacity difficulties.

Protecting the Vulnerable

If you find yourself in need of expert advice on matters relating to Alzheimer’s and mental capacity, Giles Wilson can help. As a Professional Deputy for the Court of Protection and an associate member of Solicitors for the Elderly (SFE), Melinda has a wealth of experience handling mental capacity cases. 

She has produced an exceptional vulnerable client policy that meets the SFE’s high standards and leads our talented team of experts in this area, including Carol Etherington. With this, we can identify clients who may be at risk of being vulnerable by virtue of their age, disability or circumstance and provide bespoke legal advice to support and empower them.

Call us on 01702 477 106 to arrange a free 30-minute consultation at our offices in Leigh-on-Sea or Rochford if you are seeking legal advice in this capacity.


Awards & Recognitions

The expertise of our solicitors is regularly recognised by some of the profession’s most distinguished organisations. As well as being a member of a number of Law Society schemes, we have won awards at the Law Society Excellence Awards, the Halsbury Legal Awards and the Modern Law Awards. We have also received recognition in the form of the Lexcel mark of quality, a Legal 500 listing and a place on the shortlist of The Lawyer’s Boutique Firm of the Year.

Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson