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Duncan Lewis Solicitors supporting World Mental Health Day (10 October 2016)

Date: 10/10/2016
Duncan Lewis, Main Solicitors, Duncan Lewis Solicitors supporting World Mental Health Day

In support of World Mental Health Day on 10th October, Duncan Lewis Solicitors wish to raise awareness on the topics of Mental Capacity and the Court of Protection. We must work together to mobilise efforts in support of those suffering mental health difficulties and by raising awareness on various Mental Health topics we are seeking to do this.

The reality is that any of us, at any given time, could find ourselves incapable of making decisions about our health, welfare or finances.

An individual is assumed to have full mental capacity to make every day decisions for him or herself, unless it is established that he or she lacks capacity with basic things such as personal care, what to wear and what to eat.

However, it is very important to recognise the individual affected by mental incapacity as a hypothetical vulnerable person and to consider his or her best interests.

Some cases have highlighted the importance of not making a decision based on age, appearance or behaviour but taking into account all relevant circumstances, including whether and when the individual might regain mental capacity.

Further, it is of paramount importance to consider the weight to be given to the individual’s wishes and feelings and to attempt to encourage their participation within society as much as possible. If the individual’s capacity is borderline then the weight attached to their wishes should be greater.

However, a common area of dispute is when a person is kept in a care home or other restrictive placement against their wishes and is not free to leave. The Mental Capacity Act 2005 provides a procedure by which a person may be deprived of his/her liberty in a care home or hospital provided that the correct assessments are carried out, the correct forms are completed and the restrictions imposed are in the person’s best interests. In this regard, Case Law has highlighted the importance of ensuring that the person whose liberty is taken away should have the lawfulness of this detention reviewed speedily by the Court.

Section 9 of the Mental Capacity Act 2005 introduced the LPA (Lasting Power of Attorney), which can be made for health and welfare or property and financial affairs only by an adult with capacity to do so. The test for capacity is time and function specific so may vary according to the decision that needs to be taken. An LPA is not effective unless and until it is registered. Invalid provisions will result in the Office of the Public Guardian (OPG) refusing to register the LPA and applying to the Court to sever the invalid provisions that, inevitably, will result in delay or expense. For this reason, the client should obtain legal advice before completing these documents.

Rachel Caswell, Director in the Mental Health department at Duncan Lewis, said: ‘With 25% of all adults likely to suffer a mental health problem, today on World Mental Health Day, it is essential we raise awareness and break down the Stigma. Our team is concerned about the rights and liberties of those being detained and will endeavour to exercise the legal rights of the individual and provide advice whilst they are detained, including scrutinising all forms of medical treatment.’

Duncan Lewis can advise on Deprivation of Liberty safeguards and Lasting Powers of Attorney for health and welfare or for property and financial affairs. We will be happy to discuss the funding arrangements for your case upon receiving a call from you.

Duncan Lewis has an established and diverse mental health team of skilled and experienced solicitors. Please do not hesitate to contact our Helpline on 0203 114 1124 where your call will be personally received by one of our specialist Mental Health lawyers.

Call us now on 033 3772 0409 or click here to send online enquiry.
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