This session will cover key developments inside and outside court concerning the Mental Capacity Act 2005, including capacity complexities and best interests dilemmas.

Learning outcomes

• Awareness of latest developments concerning capacity and best interests before the Court of Protection.

• Greater confidence in addressing complex capacity assessments.

• Better understanding of how to address complex best interests assessments.

Despite the significant challenges that hoarding disorder presents for social workers, hoarding has rarely been the subject of reported court cases. The judgment given in AC and GC (Capacity: Hoarding: Best interests) [2022] EWCOP 39 is the first time a Court of Protection judge has focused on this issue. Our speaker, Neil Allen, was the lawyer for AC.

Learning outcomes

• How you assess the mental capacity of an adult with hoarding disorder.

• The relevant information for the purposes of a capacity assessment when it comes to making decisions about a person’s items and belongings.

• What happens when Article 8 of the European Convention on Human Rights is engaged.

The terms ‘executive functioning’ and ‘executive capacity’ do not appear in the Mental Capacity Act (MCA), nor do they currently appear in the code of practice. However, the courts have recognised these concepts and refer to both in the relevant case law.

Assessing and working with people with executive functioning difficulties can be challenging. The individual may engage in behaviour which places them at risk of harm, and professionals are often faced with obstacles which make assessments very difficult to complete. So, it is important to understand how the MCA should be applied in such cases.

Learning outcomes

• What executive function is and how it affects the individual in the context of capacity.

• Why the most relevant functional element of the functional test of capacity when it comes to executive functioning is the ability to use or weigh the information.

• The importance of probing when undertaking a capacity assessment of an adult with executive functioning challenges and why real-world observation of the individual’s decision making may also be required to gain a full picture of capacity.

Good food and networking

The legal framework around deprivation of liberty is often misunderstood, causing unnecessary confusion, potential liabilities, and failure to safeguard the individual’s rights.

Our speaker, Ben Troke, has been involved in some of the key case law on deprivation of liberty in the community and on defining deprivation of liberty in a hospital setting. His book, A Practical Guide to the Law on Deprivation of Liberty, was published in February 2024.

‘A Practical Guide to the Law of Deprivation of Liberty’ by Ben Troke – Law Brief Publishing

Learning outcomes

• Understanding deprivation of liberty in context – proportionality and resources.

• Why it is just as important to focus on the person’s Article 8 rights (private and family life under the European Convention on Human Rights) as Article 5 (liberty and security).

• Use of the streamlined procedure for deprivation of liberty in the community.

• The consequences of getting it wrong.

• Prospects for reform, and where to focus now.

Practitioners can struggle with the issue of consent when it comes to sexual relations, and it is often the focus of safeguarding investigations. Actions designed to prevent an individual from entering into sexual relations are a particularly intrusive form of intervention and these matters should be brought before the Court of Protection. The Mental Capacity Act code of practice provides little guidance, however, guidance can be found in case law.

When it comes to assessing capacity in relation to consent to marriage, again the code of practice does not give specific guidance. Instead, this is provided by case law which has confirmed that the threshold for capacity to consent to marriage is low.

Learning outcomes:

• The relevant information according to the Supreme Court judgment in A Local Authority v JB [2021] UKSC 52, and why it’s important to understand the difference between consenting to and engaging in sexual relations.
• Why a capacity assessment to engage in sexual relations is normally act-specific, and the occasions when the assessment will need to be person-specific.
• What an individual does and does not need to understand before entering into marriage and how to assess someone’s capacity to consent to marriage.