Every adult is entitled to make their own decisions, no matter how big or small or how unwise they are perceived by others to be. This is because the law says that everyone is presumed to have the requisite mental capacity to make their own decisions unless it is proven otherwise.
However, difficulties in making a properly reasoned decision may arise in a number of situations; as a result of a medical condition, a mental health problem, a learning disability, or brain injury, for example.
If a decision needs to be made and a person is assessed to lack mental capacity to make that decision themselves, then the provisions and principles of the Mental Capacity Act 2005 must be followed, to ensure that the decision that is made is in the person’s best interests.
There are a number of decisions that may need to be taken in a person’s best interests, for example:
- In relation to a person’s care
- In relation to where a person should live
- In respect of who a person is able to see and have contact with
- In relation to whether a person is able to consent to and engage in sexual relations
- Medical treatment decisions, such as decisions to withdraw life sustaining treatment or other serious medical treatment
Local authorities and NHS Trusts are often involved in the decision making process and it is those bodies who must ensure that the necessary mental capacity and best interests assessments are undertaken and the correct processes followed before any decision is made or action taken. This involves holding a best interests meeting and inviting all of the people involved in the person’s life and care, and then making a best interests decision.
Disputes commonly arise between family members and social care/health professionals as to whether a person has or lacks mental capacity, as family members and loved ones may disagree with the outcome of a capacity assessment or best interests decision. If this is the case, an application may need to be made to the Court of Protection to resolve the dispute.
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 safeguarding the rights of those who have been assessed to lack capacity to make a particular decision themselves. The Court will consider all of the evidence put before it by the parties and this may include independent evidence and then make a decision based on what is in the person’s best interests in the event of a dispute or disagreement, having regard to several factors.
Our specialist team has the expertise and experience to seek to resolve issues before an application to the Court becomes necessary. It is crucial that legal advice and representation is sought at the earliest opportunity.
There will, however, be circumstances where court proceedings are necessary and unavoidable, and we can provide advice, assistance and representation in the proceedings.