Rising demand for mental capacity lawyers

Like many other mental capacity lawyers of my generation I began my practice focusing on mental health.

The two are similar in many ways: both are concerned with mental functioning and the human rights of some of the most vulnerable people in society. With an ageing population and the apparent increase in disorders of the mind through dementia or similar age-related conditions, mental capacity lawyers are becoming increasingly relevant and demand for our expertise is rising.

The Court of Protection and mental capacity lawyers are primarily concerned with seeking outcomes in the best interests of individuals who lack the capacity to make decisions for themselves. My work helps not only my clients but also, by extension, family members or carers.

There are rarely simple answers in the practice of mental capacity law. The decisions required are all the more difficult because of the emotional impact they may generate, particularly when they relate to welfare. The Court of Protection’s jurisdiction reflects the wide range of issues relating to capacity that arise in the lives of individuals, either directly or via family members.

These are not limited just to where a person resides or what type of care is in their best interests; they also extend to medical treatment issues such as whether receiving a particular type of treatment is in a person’s best interests, or whether surgeons should be authorised to carry out a particular operation, as well as financial issues, such as who administers an incapacitated individual’s property and affairs.

My role is to assist and advise clients through these difficult and emotionally complex issues, which can have long-standing consequences. The ability to work collaboratively with colleagues, whether they be social workers, doctors, or other lawyers – even those disputing the position of my client – is extremely important. For example, I might be required to advise a client whose adult relative has been removed from home by a local authority or advise in relation to facilitating contact between a relative and an incapacitated individual. Advice and assistance may be required by a client whose relative is in hospital on life support and in respect of whom applications are made to the Court of Protection on the question of whether life support should continue.

Mental capacity law may not be as academically complex as some other areas of law, but in some respects it is more challenging. The ability to listen and observe acutely is vital: you are not merely listening to the words spoken, but listening and observing to ascertain the wishes and feelings of clients who are often unable to provide clear instructions as a result of incapacity issues.

For all these reasons it can at times be an emotionally draining area of practice. Not infrequently I am called upon to provide advice about the best interests of a person who lacks capacity that may be contrary to the expressed wishes and feeling of the incapacitated individual or their families. This is a difficult role to undertake, requiring sensitivity, clear, calm thinking, the ability to consider a matter from several, often competing, perspectives with complex detail including medical information, and, thereafter, exceptional communication skills to provide clear legal advice to clients.

As lawyers we are all trained to analyse and provide legal advice to clients, but mental capacity lawyers need a particular range of skills to be able to serve the best interests of those who may not easily express their wishes. The Law Society’s new mental capacity (welfare) accreditation scheme, which provides specialist training as well as accreditation, is an important pillar in the professional development of solicitors working in mental capacity. It will also help to ensure that the Court of Protection and the vulnerable people who use it always have access to trained and accredited mental capacity experts.

I am extremely proud of the new scheme, which has been developed by the Law Society and a working group of highly experienced practitioners. It is a significant step towards ensuring that the growing number of vulnerable individuals and those involved in Court of Protection proceedings have access to the highest quality representation, and I am proud to call myself a mental capacity lawyer.

For more on the Law Society’s mental capacity (welfare) accreditation, go to www.lawsociety.org.uk/support-services/accreditation/mental-capacity/

Floyd Porter is a partner, head of the mental health and capacity team at Miles & Partners, and the chief assessor of the Law Society’s new mental capacity (welfare) accreditation scheme

Copyright & permissions