Mental capacity in life

Mental capacity in life

Autorem artykułu jest Bartłomiej Sporyszkiewicz

In law a person must have the mental capacity to be able to exercise their rights and responsibilities. How the law decides who has the required mental capacity?

This article will examine how mental capacity enables people to exercise their rights and responsibilities, looking into individuals’ lives from their birth through adulthood to an older age. Mental capacity is required to make personal decisions in everyone’s life and the law provides for other persons to take decisions to protect their best interests. Legal personality is gained by a baby when it is born but it is important to mention however, that even before birth, a foetus has some limited legal recognition. For example, if the foetus survives an attack on its mother and is born after suffering injury and becomes disabled as a result of the attack, then the attacker may be criminally liable for assault on both the mother and the child as described by Goodey et al ( 2008, p. 47 ). Before the age of 18, children depend on their parents or guardians to exercise their rights. The law treats the age of 18 as the age of adulthood.

In England, Wales and Northern Ireland, children under ten years old cannot commit a crime as they do not posses the required mental capacity. They are not considered to know the difference between the right and wrong. Currently those aged between 10 and 17 are held accountable for serious crimes, the same as adults.

Civil Courts do take a common sense approach and consider whether a reasonable child of certain age would appreciate the risks involved in particular circumstances and can decide as child was too young to realise the possible harmful consequences of their actions as in actual case Mullin v Richards [ 1998 ] 1 AII ER 920.(civil case)

Children’s rights and responsibilities at home, school and work are regulated by the Children Act 2004. Children as they are growing up providing they are in good mental health, will reach the full mental capacity liability once they become 18 years old. During the time before they reach 18 years of age, they are dependant on their parents in many ways. The law covered by the Children Act 2004, regulates how children are disciplined. For example ‘reasonable punishment’ on a child as described by Goodey et al ( 2008, p. 53 ) is not given in a single definition but physical punishment is limited to mild smacking only without use of any objects. Any bruises, cuts etc will not be tolerated.

Children are required by the Education Act 1996 to be in full-time education between the ages of 5 and 16 and the parents or guardians are responsible for that. As stated by Goodey et al ( 2008, p. 54 ) a mother has been jailed for failing to stop her children playing truant. Patricia Amos, 43, was sentenced to 60 days imprisonment by magistrates in Banbury, Oxfordshire, after her two daughters were found to be persistently truanting.

Where a need arises for an under aged young person to seek justice in court in civil matters they are represented by a so called ‘litigation friend’ who might be a relative as in one such case, R (Begum (by her litigation friend, Rahman) v Headteachers and Governors Denbigh High School [2006] UKHL 15.

Children can give their own consent to medical treatment at the age 16 by the Family Law Act 1969. The age set at 16 is controversial, as can be seen from the case about those undert 16 Gillick v West Norfolk and Wisbech Health Authority [1986] ac 112.

The Children Act 1989 places the needs and views of children as central to any decisions made on their welfare. In 2004, the official post of Children’s Commissioner was created by the government to look after their needs.

The Mental Capacity Act 2005 applies to decisions relating to health, welfare, property and money. Under the act, decisions about the above matters can be made by one person on behalf of another who lacks capacity ( they might be a child or adult ).

The Act does not cover decisions such as voting in election or decisions about family such as marriage. An individual who lacks mental capacity due to health, brain injury or old age ( i.e. dementia ) has to be assessed and any decision made relating to their live must be in their best interests. Often an elderly member of the family gives lasting power of attorney to other relative who will make important decisions on their behalf. The lasting power of attorney (LPA)needs to be given still when the donor ( person giving it ) has the mental capacity to do so but can lose it once they get older. The LPA must be registered with the Office of the Public Guardian. As stated in the Mental Health Act 1983, the LPA covers decisions about medical treatment, place of iving, finance or ownership of the property. If the person already lacks the capacity and cannot draw up an LPA, the Mental Capacity Act 2005 anticipates such situations and makes a provision for a Court of Protection and can appoint a deputy to make decisions on behalf of the person who lacks capacity as described by Goodey et al ( 2008, p. 109 ). In the event that the person who lacks capacity has no family nor friends who are willing to become their deputy, then Independent Capacity Advocate can be appointed. The law also provides the means of making an advanced decision to refuse medical treatment. However according to the Suicide Act 1961 and the Offences Against the Person Act 1861, it is a criminal offence to assist another person to die. Also it is worth pointing out that if there was no advanced decision made to refuse medical treatment legally, the next of kin has no legal right to consent to or refuse treatment as in the case of Re T (adult: refusal of medical treatment) [1992] 4 AII ER 649.

This article described how in law a person must have the mental capacity to be able to exercise their rights and responsibilities showing examples and evidence explaining how the law decides who has the required mental capacity and what can be done once one lacks mental capacity to make important decisions relating to their lives. The law aims to ensure the best interests of those who are incapable of making decisions.

Reference list:

Goodey, J.A., Howells, C. and Zambellas, A. (2008) Starting with Law, Milton Keynes, The Open University.

Cases and Acts:

Mullin v Richards [ 1998 ] 1 AII ER 920

R (Begum (by her litigation friend, Rahman) v Headteachers and Governors Denbigh High School [2006] UKHL 15

Gillick v West Norfolk and Wisbech Health Authority [1986] ac 112 Re T (adult: refusal of medical treatment) [1992] 4 AII ER 649

Children Act 2004

Education Act 1996

Family Law Act 1969

The Children Act 1989

Mental Capacity Act 2005

Mental Health Act 1983

Suicide Act 1961

Offences Against the Person Act 1861

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Bartłomiej Sporyszkiewicz

www.sporyszkiewicz.com

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