FAQ

No, the young person is now legally an adult.  If they lack capacity to made a particular decision then it must be made on a best interests basis, not simply on the basis of the exercise of parental responsibility.  But if someone other than yourself is making a best interests decision for your child, they have an obligation to consult with you (see MCA s4(7)).

Ensure you have told staff that you wish to be present at any best interests decision making discussions. If you don’t feel able to be involved, ask for more help. Most hospitals have a Learning Disability nurse who works with adults who should be able to support you and your son or daughter.

Ensure whenever you meet a new health professional, including admission to hospital, that you say you wish to be involved in any best interests decision making. They should welcome your knowledge and experience, and there is a legal obligation to involve you.

The ‘best interests’ decision maker working with others who know her well. The Mental Capacity Act provides a legal framework for making decisions in their best interests where a person cannot make a decision for themselves.

Best interest decisions should always be collaborative and take into consideration past and present wishes, feelings, values and beliefs of the person involved.  Ultimately the person carrying out the action is responsible for the decision. E.g. a district nurse giving an injection would decide at the time if the patient could make their own decision about it and, if not, if it is in their best interests.

It has to be a shared collaborative decision making partnership decision between professionals, family and others engaged in caring for the young person or interested in their welfare.

Acting in a patient’s best interests where a patient cannot consent, the surgeon would where possible seek affirmation from a consultant colleague and discuss their intended actions with the patient’s supporter.  It is not an issue of a signature on a form, but rather a proper best interests decision making process.

Arrange to speak to the Doctor involved.  Best interests decision makers have a duty to consult to speak to anyone caring for young person or is interested in their welfare.  If a dispute over someone’s best interests cannot be resolved in another way, it may be appropriate to ask a judge in the Court of Protection to make a decision.

As well as resolving disputes, an application to the Court of Protection might be appropriate where there is uncertainty about whether someone has capacity to make a particular decision for themselves, or about what option is in their best interests if they do not; where it is not clear if there is a valid or applicable ADRT or an LPA; or where there is a deprivation of liberty that can only be made lawful by an order of the court.

It will typically be the responsibility or any public body (local authority or NHS body) involved in providing or commissioning the relevant health or care to make any application to court.

Legal advice is usually best sought at an early stage, and non means tested legal aid may be available in some cases.

No.  An ADRT that refuses life-saving treatment must be explicit that this is the case, and must be in writing, signed and witnessed, but it does not need to have been made by a solicitor.

An ADRT that does not relate to life-saving treatment can be valid even if it is made verbally, but of course it is more likely that the relevant clinicians or carers are aware of it if it is well documented and communicated.

A Deputy is someone appointed by the Court of Protection as a best interests decision maker for someone who cannot make that category of decisions for themselves, either for property & finances or (much more rarely) for health & welfare.  A Deputy may become the best interests decision maker for those decisions, but is still obliged to follow the legal requirements of the MCA in their best interests decision making, including the obligation to consult with others as appropriate, and to put proper weight on the person’s own wishes, feelings, values and beliefs.

Any concerns about the way a Deputy is carrying out their role should be raised with the Office of the Public Guardian.

Any decisions made would still have to be considered in their best interest.  For instance you could not demand a treatment that a medical professional considered to be against their best interest.  A Deputy cannot authorise any deprivation of liberty (although if you have parental responsibility for someone under 16, you may be able to give consent to restrictions that might otherwise amount to a deprivation of liberty).

Yes. An application can be made in more than one name.  The order appointing more than one Deputy should specify whether decisions can be made by each of them independently or must be made together.

If someone is deprived of their liberty this is only lawful if it is authorised either under DoLS or by the court.  The agreement of either an Attorney or a Deputy to some or all of the restrictions that amount to the deprivation of liberty does not change this (eg consenting to the use of cot sides).  If a valid Attorney or Deputy opposes a DOLS authorisation, this will prevent the DOLS system being used and only the court would be able to authorise the deprivation of liberty