In general, all adults are entitled to make decisions about all aspects of their life, this is because the law presumes that everyone will have capacity to make these decisions unless there is proof that they are unable to do so. The law around whether a person has capacity is complex and it is therefore important that specialist legal advice is sought if this is in question.
A person may struggle to make decisions for themselves for a number of reasons, for example, they may suffer from a medical condition, have a learning disability or a brain injury. It is important to remember that the existence of an illness or condition does not in itself mean that a person may lack capacity and an assessment by a professional is required to determine this.
If a person is assessed as lacking mental capacity to make a specific decision for themselves, such as where they should live, then the Mental Capacity Act 2005 must be followed to ensure that any decisions made for that person are made in their best interests.
Local authorities and NHS Trusts
Local authorities and NHS Trusts are often involved in the decision making process and they are usually responsible for making sure that mental capacity and best interests assessments take place before decisions are made for people who may be unable to make the decisions for themselves.
This process will involve multiple assessments of the person to ascertain whether they are able to make specific decisions for themselves and, if not, what kinds of decisions they need help to make. The local authority or NHS Trust should then hold a best interests meeting and invite all of the people who are involved in the life of the person who lacks capacity and who might be able to help make the decisions for that person.
Quite often, family members and social care/health professionals are not able to agree whether a person has or lacks mental capacity. It can also be difficult for an agreement to be reached on which decisions might be in a person’s best interests.
If there is a dispute about what decision might be in a person’s best interests, or whether the person lacks capacity, then the Court of Protection may become involved to resolve this dispute.
Court of Protection
Working out what would be in someone’s best interests is difficult and disagreements between family members and professionals are common. The Court of Protection is a specialist court responsible for safeguarding the rights of those who have been assessed to lack capacity to make a particular decision themselves.
The Court of Protection can consider a wide range of issues and decisions, such as:
- Where a person should live
- What kind of care a person should receive
- What kind of medication and/or medical treatment a person should receive
- Who a person should see and have contact with
- Whether a person is able to consent to and engage in sexual relations
- Whether a person should be subject to a deprivation of liberty
The court will consider all of the evidence in the person’s case, which could include independent medical or social work evidence, including the views of family members, professionals and, most importantly, the person’s wishes and feelings. They will then make a decision based on what is in the persons’ best interests.
Our specialist team has the expertise and experience to seek to resolve issues before an application to court becomes necessary. It is therefore crucial that legal advice and representation is sought at the earliest opportunity. If an application has already been made to the Court of Protection or you want advice about making an application yourself, then we can advise you on the way forward, make applications to court and provide representation.
For advice from a member of our specialist mental capacity and Court of Protection team please call us on 0175 321 5096 or complete our online enquiry form and a member of the team will contact you directly.