Health and Welfare Disputes
Where a person lacks capacity to make decisions about their own health and welfare, a decision must be made in their best interests.
A person must be assumed to have capacity to make their own decisions unless it has been shown that they lack capacity around a certain issue. There may be an initial dispute about whether a person can make a decision for themselves or whether a best interests decision is required.
A best interests decision is a balancing exercise, taking into account the current and past wishes and feelings of the person involved, the views of family members and others involved in their care and any other relevant factors.
Where there is agreement about an individual’s best interests, it is often not necessary for the Court to be involved in decision making. However, where there is a dispute, for example there are differences between the person’s own views, those of the local authority and the person’s family, it is for the Court of Protection to step in, consider the evidence and make the decision.
The Court of Protection is often asked to make decisions about:
• Whether a person lacks capacity or can make their own decision;
• Where a person lives and whether it is in their best interests to be deprived of their liberty;
• The care or medical treatment that a person receives;
• Who the person should have contact with;
• Whether the person has capacity to consent to sexual relations or enter into a marriage.
The Court of Protection is not limited to these areas and can make best interests decisions about a wide range of subjects which affect a person’s life.
It is important for family members to be involved in proceedings as they have usually known the individual longer than anyone else. This means they often hold crucial information about the person’s long-held beliefs, values, wishes and feelings.
Our Court of Protection health and welfare department has experience of acting for family members who are concerned about the decisions being made on behalf of their incapacitated relative. We have experience of representing individuals who lack capacity to instruct solicitors. This involves taking instructions from a litigation friend, who may be a family member, advocate or the Official Solicitor.
Read our quick guide on Rule 1.2 Representation.