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MCA Blog 2023: Mental Capacity Act 2005 Annual Review

By Abigail Wright

Published In: Mental Health

On 12 October 2023, we held our Mental Capacity Act 2005 Annual Review Conference. The conference was held in the centre of Leeds at Aspire. This Grade II listed building, boasting grandiose arch ways, hosted over 250 solicitors, barristers, judges and independent advocates from across the country. This is the 13th year that the conference has been held and is the largest of its kind in the U K.  

Photo of delegates at the 2023 MCA conference

The day started with welcome refreshments for the delegates, followed by Alison Kaye , director and head of the Court of Protection health and welfare team at Switalskis, providing a warm greeting to all.

His Honour Judge Simon Burrows gave a heartfelt and personal keynote speech about his own history of brain injury and fight to regain speech and movement. It was these personal challenges that led him to change practices and become interested in mental capacity law, specifically how the views of ‘P’ are at the core of all that the Mental Capacity Act does this perfectly set the tone for the day.

2023’s ‘hot topics’

Neil Alan , Barrister of 39 Essex Chambers, took to the podium and provided a very informative presentation on the interplay between the Mental Capacity Act 2005 and the Mental Health Act’s 1998 powers for detention. Starting out by giving a whistle-stop tour on the Mental Health Act’s abilities to detain someone and going further to detail when the Mental Capacity Act would need to be the required legal framework.

Following on from Neil, Dr Janet Grace , psychiatrist, gave a thought-provoking talk regarding fictitious illness , dispelling some myths and providing advice for practical application. Dr Grace has a wealth of experience being instructed as a COP expert she gave detailed accounts of these matters and highlighted how fictious illness and malingering can case additional challenges in assessing capacity.  

Hannah Bakshani , Barrister of St Johns Buildings, addressed the delegates on a topic which she found to be reoccurring; concerns of capacity for a party other than ‘P’ . Hannah detailed the duty of solicitors if they suspect a party lacks capacity and highlighted the importance of enabling this persons’ continued engagement in the proceedings.

The head of Court of Protection at Kings Chambers, Sam Karim KC , lent his wealth of experience in the Court of Protection to the balancing act of transparency within proceedings with the right to privacy. He opened with a thought-provoking comment “the more I know about the Human Rights Act, the more vexed I get”. This epitomized the way the different articles can compete and how ultimately, one may need to hold more weight than the other.   

In an interesting turn of events, Parishil Patel KC and Joseph O’Brien KC discovered at the pre-conference meal their topics of discussion were strikingly similar. Therefore, a decision across the dinner table was made for them to combine their presentations. This led to a very interesting presentation that provided opposing opinions on this matter of fluctuating capacity and it can be managed practically within, and after, proceedings.

Dr Catriona McIntosh gave the final presentation of the day. Dr McIntosh gave a candid and enlightening presentation regarding a topic which is always up for discussion within the Court of Protection realm that of capacity to consent to sexual relations . She implored the delegates to have frank discussions regarding this topic with clients and highlighted challenges she faces as an instructed expert in assessing capacity for a topic which is often be treated as ‘taboo’ and not openly discussed.

Many laughs were shared during the question-and-answer segment after the final presentation concluded. A time during which the delegates were invited to ask questions of Dr Grace and Mr O’Brien KC. All too often during these open Q&A’s, the room falls into a deafening silence but not on this occasion. The questions were in abundance and professionals were keen to further enquire of the expertise of those on the podium.

 And all that came in between!

The venue, Aspire, boasts an impressive kitchen staff of Michelin trained chefs and Master Chef finalist from whom the buffet lunch did not disappoint. The lunch break, and additional coffee breaks, provided ample time to digest the insightful information from the speakers and networking with others in attendance as well as sampling the divine chocolate brownies! 

To summarise…

The 2023 Annual Review of the Mental Capacity Act 2005 held by Switalskis was an absolute triumph. Each speaker and their topic of presentation were engaging and thought-provoking. The passion for this area of law the speakers hold was clear and drew you into their topic of discussion.

As a paralegal for Switalskis, I found the presentations enriched my knowledge of the topics for matters in the future and opened up reflection for previous matters I have supported on. This year however was the first year attending as a paralegal, I have been fortunate to attend three previous conferences as an independent advocate and even then it was a highlight of the year to be afforded the opportunity to attend.

Planning is well underway for our next conference, to be held again in October 2024. To make sure you can get tickets sign up to our Mental Capacity Act 2005 Annual Review conference mailing list here.

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Abigail is a Paralegal in our Court of Protection Health and Welfare team.

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