Disputes about health and welfare

Where an adult lacks capacity to make a particular decision the principles and procedures set out in the Mental Capacity Act 2005 must be followed in order to ensure that the decision taken on  their behalf is taken in their  best interests.

Best interests decisions about health and welfare include:-

  • Where they should to live
  • What care they should receive
  • Whether they should undergo a particular medical treatment
  • Whether life sustaining treatment should be withdrawn
  • Who they should have contact with
  • Whether they are able to consent to marriage and/or sexual relations
  • Whether they are being unlawfully deprived of their liberty

Local authorities and NHS Trusts involved in making decisions on behalf of people who lack capacity must ensure that capacity and best interests assessments are undertaken in accordance with the provisions of the Mental Capacity Act. For more significant decisions, this will usually involve holding a best interests meeting and inviting all interested parties (including close family, friends and carers) along to take part in discussions.

Our team are experienced in supporting and representing family members at best interests meetings and we will ensure that your views concerning your loved one’s best interests are afforded proper weight in the decision making process.

It is not uncommon for disagreements to arise between families and health or social care providers about whether their loved one has capacity to make a particular decision or about what course of action is in their best interests. Where there is a dispute about a significant health or welfare issue an NHS Trust, local authority or any other interested person (including family members) can apply to the Court of Protection to resolve the issue.

The Court of Protection has jurisdiction to rule on whether a person has capacity to make a particular decision and, if they do not, what decision should be taken in their best interests. Before reaching a decision the court will consider all of the evidence put before it by the parties which may include independent expert evidence.

Our Court of Protection team can advise and represent family members who have been made a party to Court of Protection proceedings issued by a local authority or NHS Trust concerning a loved one. Immediate family members usually have the right to be involved as parties to the proceedings. We can also act on behalf of family members who wish to initiate their own Court of Protection proceedings.

Our specialist team can assist in resolving health and welfare disagreements before a court application becomes necessary. It is therefore important to seek legal advice and representation at an early stage to reduce the risk of disagreements escalating into litigation.

Please do not hesitate to contact us should you require any assistance.