When an adult is deemed to “lack mental capacity”, it means they are considered to be unable to make decisions for themselves. Whether due to disability, illness or injury, if an individual lacks the capacity to make their own decisions, a third party must step in to make those decisions on their behalf.
This area of law is extremely nuanced and can quickly become complicated. Parties may disagree on what constitutes an individual’s “best interest”, or who should be making those decisions. There can also be disputes concerning whether the individual lacks the capacity to make their own decisions. This is where the Court of Protection may step in to settle a dispute or hand control over to a Court of Protection Deputy.
The Mental Capacity Act 2005 (MCA) is a cornerstone of this process, and we are here to help you understand its implications, especially when it comes to best interests decision-making.
What is ‘Best Interests Decision-Making’?
The term “best interests decision-making” refers to the process outlined in the Mental Capacity Act 2005, which provides a legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make decisions for themselves. The Act defines a person as lacking mental capacity if they are unable to understand, retain, use, or weigh information relevant to a decision or are unable to communicate their decision.
Criteria for Determining Lack of Mental Capacity
Under the MCA, a person’s mental capacity must be assessed before any decision-making process begins. This assessment is usually carried out by a healthcare professional or a solicitor with expertise in this area. The key criteria include the individual’s ability to:
- Understand the information relevant to the decision.
- Retain that information long enough to make the decision.
- Use or weigh that information as part of the process of making the decision.
- Communicate the decision, whether through speech, sign language, or any other means.
If an individual is found to lack mental capacity, any decision made on their behalf must be done in their best interests, as stipulated by the MCA.
Factors Considered in Best Interests Decision-Making
Section 4 of the Mental Capacity Act 2005 outlines the factors that must be considered when determining what is in an individual’s best interests. These include:
- The person’s past and present wishes and feelings: This might involve considering any written statements made by the person before they lost capacity, as well as their current preferences.
- The beliefs and values that would likely influence the person’s decision if they had capacity: This ensures that the decision respects the individual’s personal beliefs and values, including religious convictions.
- The views of others: Those involved in the individual’s care, such as family members, friends, and healthcare professionals, should be consulted to gather a comprehensive understanding of what might be in the person’s best interests.
- The possibility of the person regaining capacity: If it is likely that the person may regain capacity, decisions should, where possible, be delayed until they can make their own decisions.
What is a Best Interests Meeting?
A best interests meeting is a formal gathering where those involved in the care and welfare of a person who lacks mental capacity come together to discuss and decide on the best course of action. These meetings are a crucial part of ensuring that all relevant factors are considered and that the decision is made collaboratively.
Typical Attendees and Their Roles
A best interests meeting typically includes:
- Healthcare professionals: Doctors, nurses, and other healthcare providers involved in the individual’s care.
- Social workers: Often play a key role in coordinating care and ensuring the individual’s needs are met.
- Family members or close friends: Those who know the individual best and can provide insight into their wishes and feelings.
- Independent Mental Capacity Advocate (IMCA): An advocate who represents the person’s interests if they do not have family or friends to support them.
- Case Managers: Case Managers play a crucial role in understanding and supporting clients with complex needs, drawing on their expertise and close relationships with clients and their families to make personalised recommendations in the clients’ best interests.
Each attendee brings a unique perspective to the table, ensuring that the decision is well-rounded and in the individual’s best interests.
Types of Decisions Commonly Made
The decisions made in a best interests meeting can cover a range of issues, including:
- Living arrangements: Deciding where the individual should live, such as whether they should remain at home, move to a care home, or receive care in a different setting.
- Medical treatment: Decisions about the types of medical treatment or interventions the individual should receive, especially in complex cases.
- Financial decisions: In some cases, decisions regarding the management of the individual’s finances or property might be made, particularly if there is no lasting power of attorney in place.
Understanding Enduring or Lasting Power of Attorney (LPA)
An Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA) is a legal document that allows an individual (the ‘donor’) to appoint someone (the ‘attorney’) to make decisions on their behalf if they lose mental capacity. An LPA can cover decisions related to health and welfare, or property and financial affairs.
Scope and Limitations of LPAs
While LPAs are powerful tools for safeguarding the interests of those who lack capacity, they are not without limitations. The scope of an LPA is defined by the donor at the time it is made, and it must be registered with the Office of the Public Guardian before it can be used.
However, having an LPA does not always grant the attorney absolute decision-making authority. For example, decisions that go against the best interests of the individual, as defined by the Mental Capacity Act, can be challenged. Moreover, the attorney must always act within the scope of the authority granted by the LPA and cannot make decisions outside of what is stipulated in the document.
Why Having an LPA Does Not Always Grant Final Decision-Making Authority
It’s important to understand that even with an LPA in place, there may be situations where the Court of Protection needs to intervene. For example, if there is a dispute about what constitutes the best interests of the individual, or if there are concerns that the attorney is not acting in the person’s best interests, the court may need to step in to resolve the issue. This demonstrates the importance of careful consideration when drafting an LPA and selecting an attorney.
Common Scenarios Where Disputes May Arise
Disputes in best-interest decision-making often arise when there are differing opinions about what is best for the individual. Common scenarios include:
- Disagreements between family members: Family members may have different views on what the person would have wanted, leading to conflicts.
- Disputes between healthcare providers and family: There can be disagreements about the appropriate course of medical treatment, particularly in complex or end-of-life care situations.
- Concerns about the attorney’s actions: If there are suspicions that an attorney under an LPA is not acting in the best interests of the individual, this can lead to disputes.
Role of the Court of Protection in Resolving Disputes
The Court of Protection plays a vital role in resolving disputes that cannot be settled through discussion and negotiation. The court has the authority to make decisions on behalf of individuals who lack capacity and can intervene in cases where there is a disagreement about what is in the person’s best interests.
Process of Making an Application to the Court of Protection
Making an application to the Court of Protection involves several steps:
- Filing the application: This includes providing evidence of the person’s lack of capacity and the nature of the dispute.
- Court hearing: The court will consider the evidence and may hold a hearing to listen to the views of all parties involved.
- Court decision: The court will make a decision based on the best interests of the individual, taking into account all relevant factors.
Our Court of Protection team at Slater Heelis has extensive experience in handling such applications and can guide you through the process, ensuring that your concerns are addressed and that the individual’s best interests are upheld.
Contact Us
Our solicitors have extensive experience supporting those who lack mental capacity. We understand the difficulties involved and they are dedicated to providing clear, compassionate, and professional guidance every step of the way.
Associate Partner, Chris Brayshaw, explains:
“We at Slater Heelis can draw upon our extensive experience as Professional Deputies and Attorneys to bring together all parties and make both practical and legally sound suggestions to ensure that our client’s best interests are met. With two panel Deputies within the team and experience working with a variety of clients from our elderly clients to our more complex brain injury clients, who have a large set of clinicians involved, we can assist with all eventualities that involve a client’s property and financial decisions.”
Whether you are dealing with a best interests decision meeting, concerns about an LPA, or a dispute that requires the intervention of the Court of Protection, we are here to help.
If you have any questions or need further information, please do not hesitate to get in touch with us using our online contact form or by calling 0330 111 3131.