Best interests: From the TV drama to real life disputes about care and treatment
The BBC drama ‘Best Interests’ focused on the medical decision to withdraw life sustaining treatment from a child with a rare form of muscular dystrophy. The drama does not pull any punches and explores the situation where doctors and the child’s parents cannot agree on a course of action and the decision must be made by the courts.
While these ‘serious medical treatment’ cases involving children are the ones that receive high-profile media attention, and deal with the traumatic issue of how and by whom the decisions are made, the majority of best interest decisions concern vulnerable, disabled or older adults.
Best interest decisions must be made for an adult who has been assessed as lacking the mental capacity to make that decision themselves.
In some cases, a family member or close friend may hold a Lasting Power of Attorney for Health and Welfare to make decisions for the adult lacking capacity. Where a Lasting Power of Attorney is not in place, unless there is a Welfare Deputy appointment – which is quite rare – then the Court of Protection will become the default decision-maker. There are certain Welfare decisions that can only be made by the Court of Protection, even if the vulnerable adult has a Welfare Attorney or Deputy.
Sadly, best interest disputes between the professionals and the family are common. The dispute may be about where the vulnerable adult should live and how they should be cared for, or about their contact with others, or medical decisions.
Where there is a conflict between the Attorneys, or between the professionals and the family of a person deemed to lack capacity, it can be difficult for all parties to reach consensus about the best interest option.
Health or social services may claim that the person’s relatives have not acted in their best interests, or the vulnerable adult or their family may believe that the professional’s capacity assessment is wrong, and wish to challenge it. These disputes can often occur at a time of crisis when it is important to make decisions quickly. They can cause a significant loss of trust between all parties involved.
Where relatives and health or social services reach an impasse, it may be necessary to apply to the Court of Protection to establish the best path of action.
The Mental Capacity Act (2005) provides a Code of Practice which includes a checklist to help decision-makers make best interest decisions on behalf of the person they represent.
Our Community Care law team advise and represent many families and Lay or Professional Deputies and Attorneys at best interest meetings, with the focus of avoiding litigation and resolving the dispute at local level where possible. We represent clients in the Court of Protection to achieve the best outcomes in difficult welfare issues. Professional Deputies are aware that their authority to act on welfare matters is strictly limited by the Court and the Office of the Public Guardian, but that they do have authority to obtain expert independent advice about welfare decisions. Our advice is always tailored to assist the Deputy in navigating those Re: ACC restrictions.
It is vital to involve an expert mental capacity lawyer to uphold the rights of the adult who lacks capacity. Our lawyers refer to the Mental Capacity Act Code of Practice and case law judgments to ensure that all decision making that takes place is in that person’s best interests.