mental capacity act 2005

Protecting Britney – the difficult question of control

The much-publicised situation surrounding the private life of Britney Spears has made for illuminating reading for those unfamiliar with the US system of conservatorship.

Following concerns about the singer’s mental health more than a decade ago, the court-ordered arrangement was put in place which saw control of decisions about aspects of her life passed to her father. There have since been various claims that that conservatorship has taken away some of Spears’ human rights, and that too much control has been placed in the hands of others. The #FreeBritney movement has campaigned for the conservatorship to be brought to an end. And it’s been reported that Jamie Spears, Britney’s father, has now filed for that to happen.

Press reports of the types of restrictions placed on Britney, and of her feelings about the conservatorship, have been an uncomfortable read. We don’t know the facts; the details of the arrangement remain private. But for those of us who work to safeguard the best interests of vulnerable people, we’re confident that a situation like that of Britney Spears could be avoided in the UK.

We don’t have conservatorships in England and Wales. Our system is based around the Court of Protection, which steps in where necessary (and where there is no Power of Attorney in place) to protect vulnerable people who can no longer make informed decisions for themselves. The court decides whether or not the person has mental capacity, and appoints ‘deputies’ to make decisions for him or her if capacity is considered to have been lost.

‘Deputyship’ is therefore our version of conservatorship. It is the appointment of one or more adults – usually a family member or friend of the person who has lost capacity – to take care of decisions about health and welfare and/or property and finances. Deputies become responsible for deciding everything, from what should happen to the person’s investments, to where they should live and the healthcare they should receive. (An alternative would be to have an ‘attorney’ appointed under a Power of Attorney, or a Lasting Power of Attorney.)

Deputies don’t have to have any particular qualifications. Sometimes legal or financial professionals are appointed, but this isn’t always necessary. The overriding duty is for the deputy to act in what they reasonably believe to be the best interests of the mentally incapacitated person. Working out what is and isn’t in a person’s best interests may not always be straightforward, and deputies sometimes have a challenging time in deciding how best to handle particular situations. But guidance comes from the Mental Capacity Act, which includes that decisions must not be based:

  • merely on the basis of a person’s age or appearance; or
  • on the condition of, or an aspect of, the person’s behaviour which might lead others to make unjustified assumptions about what might be in their best interests.

Another key principle is that when deciding best interests, steps must be taken (where possible) to allow, encourage or help the person participate as fully as possible in any act done for him and decision affecting him. This is hugely significant, as it seeks to avoid a situation in which a deputy effectively railroads decisions. It reminds deputies that the mentally incapacitated person is the focus and may still have a voice.

There are some additional layers of protection, too. Deputies are expected to file information – including expenditures made – annually, documenting the decisions they have made. And this is overseen by the Office of the Public Guardian.

No legal system is without fault, but having worked with families to take care of loved ones, it’s clear to me that the Court offers vital protection for those most in need. It firmly places the needs and interests of the mentally incapacitated person at the heart of decisions. And I think people and families should take comfort from this. If mental incapacity strikes, there will be layers of support in place.

To talk to me in confidence about mental capacity, deputyship, or about making a Lasting Power of Attorney, contact Emma Howlett on 01892 337540 or email emma.howlett@thomasmansfield.com.