Title Page -- Table of Contents -- Preface -- Acknowledgements -- Table of cases -- Table of statutes -- Glossary -- List of abbreviations -- CHAPTER 1: Introduction -- Mental health and mental capacity -- Deprivation of Liberty safeguards -- Coming into force of the MCA -- Sources of help -- Professional legal advice -- Terms used -- Organizations involved in the care and support of adults who lack mental capacity -- Quick fire quiz, QFQ1 -- References -- CHAPTER 2: Background to the legal system and the Mental Capacity Act -- Introduction -- The legal system -- Changing the law -- Official guidance and advice -- Human rights -- Judicial review -- The law relating to trespass to the person and consent -- Decisions relating to mental capacity -- The principle of necessity -- Weaknesses of common law -- Law Commission -- Events since 1995 -- Mental Capacity Act 2005 -- Mental health legislation -- Reform of the Mental Health Act 1983 -- Inherent jurisdiction of the court -- Conclusions -- Quick fire quiz, QFQ2 -- References -- CHAPTER 3: Human rights and statutory principles for governing decision making -- Introduction -- The Human Rights Act 1998 -- European Convention on Human Rights -- Restriction and loss of liberty -- Allegation of incompatibility between Ss2 and 29(4) of MHA and Article 5 -- Restraint and loss of liberty -- UN Convention on Rights of Persons with Disabilities -- Convention on the International Protection of Adults -- Statutory principles governing decision making under the MCA -- Disability discrimination legislation and the Equality Act 2010 -- Conclusions -- Quick fire quiz, QFQ3 -- References -- CHAPTER 4: Definition of mental capacity -- Significance of mental capacity -- Presumption that capacity exists -- Presumption of capacity: scenario -- How is mental capacity defined? -- Stage 1 An impairment or disturbance?.

Superficial judgments -- Children and young persons -- Stage 2 An ability to make decisions -- What is meant by inability to make decisions? -- Facilitating communication -- Explanation of 'appropriate to his circumstances' -- Issues arising in deciding if a person lacks mental capacity -- Who carries out the assessment of capacity? -- When is help brought in for the assessment? -- Use of experts in determining if the requisite capacity exists -- How often must the assessment be carried out? -- What if there is a dispute over the assessment? -- What role do relatives play in the assessment? -- Assessment of capacity in an everyday situation -- Has guidance been provided on the assessment? -- Is the assessment a medical one or does it involve social and other types of assessment? -- What happens if P does not accept the assessment of a lack of capacity? -- Cases illustrating different kinds of decision making -- The capacity to litigate -- Capacity and finance -- Capacity to marry -- Capacity and sexual relations -- Undue influence and capacity -- Mental capacity: holiday case -- Capacity and residence -- Conclusions -- Quick fire quiz, QFQ4 -- References -- CHAPTER 5: Making decisions in the best interests of others -- Introduction -- Best interests-the fourth principle -- Who makes the decision on best interests? -- What is meant by best interests? -- The criteria used to determine best interests -- Example of a case which decided what were 'best interests' -- Risk taking -- Case illustrating consultation duty -- The criteria used to determine best interests -- Who decides? What role does the family play? -- Standard of compliance: Section 5 -- Exclusions from Section 5 -- Restraint-Section 6 -- Restraint and LPA -- Payment for necessary goods and services -- Reimbursement of expenditure -- Decisions excluded from the Act.

Exclusion of MHA matters (S28(1)) -- Exclusion of voting rights (S29(1)) -- Advance decisions -- Decisions which should go to the CoP -- Decision making in specific areas -- Decisions about sexual activity -- Intimate care -- Serious medical treatment -- Case illustrating decision about serious medical treatment -- Obstetric case and caesarean -- Sterilization -- Anorexia -- Best interests and contact -- Best interests and conflict within family -- Best interests and property -- Selling the Pissarro -- Best interests and residence -- Best interests and marriage -- Best interests and the balance sheet approach -- Guidance on best interests -- Working within the funding available -- Use of funds for a sibling -- Conclusions -- Checklist for determining best interests on behalf of P -- Quick-fire quiz, QFQ5 -- References -- CHAPTER 6: Lasting powers of attorney -- Introduction: Statutory provisions -- What about existing EPAs -- What is an LPA? -- Forms for LPAs -- Who can make LPAs? -- How would capacity be defined? -- How are they drawn up? -- What could an LPA cover? -- Who could the donee be? -- Trust corporation -- What if the donee did not know of the appointment? -- What if the donee changes his or her mind? -- What conditions are required for a valid LPA? -- The donor must have the requisite mental capacity to sign the LPA -- Can more than one donee be appointed? -- What happens if there are several donees who disagree? -- What formalities must be followed? -- Execution of the LPA -- Registration -- Objections to registration -- What do the registration provisions mean? -- Schedule 1 Part 2 of the MCA registration provisions -- Schedule 1 Part 3 of the MCA: cancellation of registration and notification of severance -- Schedule 1 Part 4 of the MCA: records of alterations in registered powers -- Nonregistration.

Fees in respect of the LPA and Court of Protection -- Limitations on an LPA -- Restraint of P -- Hypothetical dispute over LPA -- Manual handling and human rights -- Decisions on health and welfare -- What is the role of the LPA in advance decisions which relate to life and death issues? -- LPA and advance decision -- Applicability of the advance decision to the present situation -- Does the LPA apply? -- Power in LPA to refuse lifesaving treatment -- What is the significance if a patient in hospital has drawn up an LPA? -- Refusing pain relief -- What is the significance for care homes if a resident has drawn up an LPA? -- LPA and the best interests of the patient -- Gifts -- Acting contrary to the best interests of the donor -- How does the donee know when the LPA comes into effect? -- What principles must be followed by the donee in making decisions? -- In what circumstances can a donee act contrary to the best interests of the donor? -- How would action to control a donee commence and be followed through? -- Who would represent P in checking up on the actions of the donee? -- Duties of donee or attorney -- What happens if the donor changes his mind about setting up an LPA? -- How long does an LPA last? -- How can an LPA be changed? -- Revocation of LPAs -- Re DP (Revocation of a lasting power of attorney) (January 24, 2014) -- Bankruptcy -- Fraudulent donee -- What happens if the donee does not carry out what the donor would have wished? -- Protection of donee and others if no power is created or the power is revoked -- Powers of the Court of Protection in relation to the validity of LPAs (Sections 22 and 23) -- Powers of the Court of Protection in relation to the operation of LPAs -- Application to the Court of Protection -- Future changes -- Conclusions -- Quick fire quiz, QFQ6 -- References.

CHAPTER 7: Court of Protection, court-appointeddeputies, the Office of the Public Guardian, and visitors -- Introduction -- Court of Protection -- Permission to apply -- Court-appointed deputy -- Deputy and personal welfare decisions -- Deputies and property and affairs -- Duties of deputies -- Office of Public Guardian -- Duties of visitors -- Official Solicitor -- House of Lords Post-Legislative Scrutiny of the MCA 2005 -- Conclusions -- Quick fire quiz, QFQ7 -- References -- CHAPTER 8: Independent mental capacity advocates -- Background to the provision on independent advocates -- The principle of advocacy -- When should an advocate be appointed? -- Who can be an advocate? -- Powers of the IMCA (S.35(6)) -- What are the duties and functions of the independent mental capacity advocate? -- How is an advocate held to account, if he or she has failed to fulfill these duties? -- Who monitors what the advocate is doing? -- What about payment to the advocate? -- Who can challenge the appointment of an advocate, for example, if there is a split in the family? -- Can an advocate access the patient's records? -- Is an advocate under a duty of confidentiality? -- What training will an advocate have? -- When could an advocate be appointed in spite of family and friends being available? -- Who else could be consulted before an IMCA is appointed? -- Exceptions to the appointment of an IMCA -- IMCA and court-appointed deputy -- How can an advocate challenge decisions made in the light of information he or she has provided which seems to have been ignored? -- Right of IMCA to challenge the decisions -- Formal dispute resolution -- Can an advocate delegate responsibility? -- What problems might an advocate face? -- A question of time.

What happens if an advocate wishes to have an input into decisions on which the responsible authority decides that there is no need to seek IMCA advice?.