Mental Capacity Act Costs Recovery



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What is the Mental Capacity Act (MCA) 2005?

The Mental Capacity Act 2005 allows an appointed person, such as a family member or legal representative, to make decisions on behalf of people aged 16 and over who lack capacity to make decisions for themselves. Those caring or working for adults who lack mental capacity in England and Wales have an obligation to consider the Mental Capacity Act Code of Practice when making decisions. The people covered under this Code of Practice include:

  • Independent mental capacity advocates
  • Attorneys appointed under a lasting power of attorney
  • Deputies appointed by the Court of Protection
  • Those acting in a professional capacity for those who can’t make their own decisions
  • Persons who are paid to act in relation to people who can’t make their own decisions
  • Those conducting research approved in accordance with the Mental Capacity Act


When Should a Decision be made on Another Person’s Behalf?

All adults have the right to make their own decisions if it is possible to do so. It should be assumed that a person can make a decision until there is proof to the contrary. Vulnerable persons should be supported in making decisions themselves, and it should not be assumed that a person lacks capacity simply because they have made a decision that could be considered wrong or unwise.

In some circumstances, it may be the best course of action for another to make a decision on behalf of people who lack capacity.

Under Section 2 of the Mental Capacity Act 2005;

“People who lack capacity

(1)For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)It does not matter whether the impairment or disturbance is permanent or temporary.

(3)A lack of capacity cannot be established merely by reference to—

(a)a person’s age or appearance, or

(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4)In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

(5)No power which a person (“D”) may exercise under this Act—

(a)in relation to a person who lacks capacity, or

(b)where D reasonably thinks that a person lacks capacity,is exercisable in relation to a person under 16.

(6)Subsection (5) is subject to section 18(3).”

Decisions made for people who may lack capacity to consent should be made in the best interests of the vulnerable person, and should be the route that is least restrictive of their basic freedoms and rights.

Section 4 of the Mental Capacity Act outlines deprivation of liberty safeguards as follows;

Restriction on deprivation of liberty

“(1)This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

(2)But that is subject to—

(a)the following provisions of this section, and

(b)section 4B.

(3)D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4)A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P’s personal welfare.

(5)[F1D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).][F1D may deprive P of liberty if, by doing so, D is carrying out arrangements authorised under Schedule AA1 (arrangements enabling the care and treatment of persons who lack capacity).]”

Mental Capacity Act Costs


Cases which fall under mental capacity costs may include unlawful detention cases, Habeas Corpus cases, deprivation of liberty (DoLs), and Upper Tribunal (Mental Health) Judicial Review cases. Mental Capacity Act costs may fall under the scope of Legal Aid and costs will need to be recovered from the Legal Aid Agency (LAA) in such an event.

On conclusion of a legal aid funded Mental Capacity Act case, a Legal Aid fee earner will be able to recover their costs from the LAA. The fee earner, usually a Solicitor, Paralegal or Litigation Executive, must provide the Legal Aid Agency a Bill of Costs (we recommend an XML document is produced and uploaded via CCMS) which, on provision of supporting documents, will usually be processed and assessed by the Legal Aid Agency within 14 – 21 days, pending the client having any financial interest.

It can be advantageous to instruct a Legal Aid Costs Draftsman who has specialist knowledge of the recovery process for Legal Aid provided by the LAA. They are able to calculate the incurred costs on cases have been funded by the LAA.

A Legal Aid Costs Draftsman can maximise the fixed fees/enhancement which can be recovered through the implementation of their expert knowledge.

The fees of the Costs Draftsman will be paid in addition to the base legal fees, by the Legal Aid Agency as fixed costs do not apply to such certificated matters, and it is often that discretionary enhancements can be successfully recovered, given the exceptional competence required in these matters to provide elevated client care, and the importance of the outcome to the Protected Person client.


How can ARC Costs Assist?

Our team of highly skilled Law Costs Draftsmen and Costs Lawyers regularly assist in all types of costs claims, including publicly funded and inter-partes costs claims, with our client base ranging from law firms to Litigants in Person.

Using our expert costing service, we help clients maximize their recovered legal costs whilst providing expert legal advice and minimising the risk of rejected claims from the Legal Aid Agency, to ensure you maintain your KPIs.

We regularly use the CCMS system to submit legal aid costs claims and deal with all the administration on behalf of our clients and to free up the time of fee earners, thereby ensuring you can recover your maximum legal aid fees in an expeditious and efficient manner. 

To find out more about Mental Capacity Act costs, or to request assistance from a costs lawyer or costs draftsman, please contact us on 01204 397302 or email us on



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