Disputes over a vulnerable person’s welfare and best interests
Having mental capacity means being able to make your own decisions, this includes big and small decisions and straightforward and complex ones.
Mental incapacity can arise from an accident, stroke, cognitive illness such as dementia, learning disability or a severe mental health problem. This lack of capacity can be temporary or permanent.
If an individual does lack the mental capacity to make important decisions, any decision made on their behalf must be in that person’s best interests and follow the law.
Sadly, disputes do arise between families and more often between families and public authorities, such as Social Services or the NHS. These disputes often concern where an individual should live or with whom they should have contact. Individuals on both sides of the argument will sometimes have strongly held views as to what is in someone’s best interests.
If disputes cannot be resolved by discussion or mediation, then the Court of Protection may be asked to make a decision on behalf of the person who lacks capacity. The Court can also appoint or remove individuals to be decision makers on behalf of that person for both financial and welfare matters.
It is not uncommon to be told by health or social services that they think your relative lacks the mental capacity to make certain decisions (for example, whether to be cared for at home or in a nursing home) and for disputes to escalate because professionals and the family have very different opinions about mental capacity and what decision should be made. These disputes can sadly arise at times of crisis and can lead to a loss of trust between the family and the professionals involved in planning the individual’s care.
We can guide you through the process to ease any difficulties you may be having and making sure you can support your relative in getting the outcome you believe they would want and should have.
If you believe that health and social services are wrong to conclude that your relative lacks the mental capacity to make a particular and important decision which affects their life and freedom, we can advise you on how to challenge the mental capacity assessment.