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Published: Fri, 02 Feb 2018
Law recognises person as legal capacity
Legal capacity is defined at Goodey et al. (2008, p. 98) as “law recognises a person as having legal capacity only when that person understands and appreciates the consequences of their actions”. The aim of this essay is to explain how the law provides protection for an individual when a person does not have the understanding and appreciation of their actions. Three key areas will be examined in respect of legal capacity, from the onset of gaining a legal personality to the age of criminal responsibility, through to adolescence and finally looking at legal capacity as an adult.
Legal personality is attained upon birth and is retained until death, although the rights of minors (those persons aged under18) are restricted. Legal capacity is only acquired when an individual reaches a certain level of intellectual maturity and competence. At birth these rights are delegated to either the parents, legal guardians or the State. The child is protected under law by the Children Act 1989 which designates those that have parental responsibility to safeguard and promote the wellbeing of the child. Whilst the Children Act 1989 defines the notion of parental responsibility, the Education Act 1996 states that those with parental responsibility are to ensure that the child is in full time education between the ages of 5 and 16. In criminal law a child under the age of 10 cannot be held legally responsible for their actions, and so cannot be convicted for committing a criminal offence. This is known as the doli incapax rule and it is an absolute conclusive presumption. In civil law, a child cannot enter into a legally binding contract apart from distinct exceptions such as purchasing food, bus fares and clothes as these are deemed essential services.
With the onset of adolescence, legal capacity is attained at varying ages. For example, a minor at the age of 13 may work, although the nature of the employment, hours worked and remuneration are subject to a myriad of legislation ranging from Acts of Parliament, Local Byelaws and EU Directives implemented to protect the child. The Family Law Act 1969 fixed the upper age limit of individual medical consent to 16 years old. This “fixed age” may be open to individual legal challenge as Gillick v West Norfolk and Wisbech Health Authority  AC 112 highlights. Lord Scarman’s ruling in this case stated that parental rights to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed. This has now become known as the test for “Gillick Competency”. This case highlights the attainment of legal capacity as a minor, although conversely one can see liability of children regarding the tort of negligence being challenged in the case of Mullin v Richards  1 All ER 920. Judge Hutchison ruled in favour of the defendant in that there was insufficient evidence that the accident had been foreseeable in the case of an ordinary prudent and reasonable child in what had been no more than a childish game.
When an individual reaches the age of 18, one is legally considered an adult. In certain circumstances, although one has attained full legal capacity, there may be times when the individual loses this capacity due to reasons of acute or chronic mental health issues, disease or traumatic injury. The Mental Health Act 1983 primarily covers the reception, care and treatment of mentally affected persons. It provides the legal framework for the assessment and/or treatment of mental disorders in cases of those not having the requisite capacity. This allows the State to act as parens patriae to provide medical treatment to the individual concerned. In the case of Re T (adult: refusal of medical treatment)  4 All ER 649 refusal of medical treatment was denied by the Court of Appeal as the individual concerned had been subject to undue influence by a close relative. However, provided there is sufficient information and provided that the refusal is drafted in sufficiently unequivocal terms, and the individual displays the requisite legal capacity, it should be treated as a lawful refusal of medical treatment. The Mental Capacity Act 2005 was introduced to provide a legal framework for acting and making decisions on behalf of individuals who lack the capacity to make particular decisions for themselves. A legal document called a Lasting Power of Attorney (LPA) allows an individual to appoint an attorney to make decisions on the individual’s behalf. Two types of LPA can be made, a health and welfare LPA and a property and financial affairs LPA. The LPA must be registered with the Office of the Public Guardian (OPG). If an individual has not appointed an attorney, the Court of Protection may make decisions in relation to the property, finances, healthcare and personal welfare of individuals who lack capacity. The Court will appoint an Independent Mental Capacity Advocate (IMCA) to act on behalf of the individual. In reaching any decision, the Court must apply the statutory principles set out in the Mental Capacity Act 2005. It must also make sure its decision is in the best interests of the person who lacks capacity.
In addition to the legislation mentioned, the Human Rights Act 1998 (HRA 98) gave effect to the European Convention of Human Rights. Within the scope of this legislation protection is afforded to those individuals lacking capacity under Article 8. In keeping with HRA 98 the Mental Capacity Act’s starting point is the presumption that everyone has legal capacity to take their own decisions. Before a decision is taken on behalf of a person who lacks capacity, consideration must be given as to whether the same purpose can be achieved as effectively, in a manner that is less restrictive of the person’s rights and freedom of action.
In conclusion, it is demonstrable that the law provides protection for those lacking legal capacity. For minors this is provided by a person who has parental responsibility. For those individuals where the age criteria is not absolute, judicial cases show that legal capacity and intellectual understanding must be proved. In cases where the individual has reached the age of majority, the law provides protection by allowing the individual to choose a person with legal capacity to act on their behalf, or if this is not possible, the State will appoint an advocate.
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