In every decision the Court of Protection is asked to make in relation to a protected party (i.e. an individual who lacks capacity), the Judge will consider the concept of the protected party’s best interests. There is no litmus test which triggers this heavily-used phrase, but Section 4 of the Mental Capacity Act 2005 contains a criteria.
Some of the factors listed in Section 4 will be more relevant than others, depending on who a protected party is and the nature of their condition. However, all of them can apply to some degree and whenever there is a dispute over a decision that needs to be made on a protected party’s behalf, whether financial or welfare-related, the opposing parties tend to formulate arguments based on one or more of the components of the best interests criteria.
Best interests criteria in Court of Protection cases
Section 4 provides that the Court must:
- Avoid making any assumptions based on a protected party’s age, appearance, state of health or behavioural aspects (i.e. treat a protected party as an individual and approach the matter without prejudice);
- Take into account all relevant circumstances of the case;
- Consider the extent to which a protected party has lost capacity and whether they will regain capacity at some point;
- As far as reasonably practicable, involve a protected party in the decision-making process and give his/her views;
- Avoid making determinations in relation to life-sustaining treatment based on a motivation to bring about a protected party’s death;
- A protected party’s past and present wishes and feelings;
- Any personal beliefs and values that would guide a protected party; and
- Any other factors a protected party would take into account if he/she could.
- Take account of the views of
- Anyone a protected party has named as an individual to consult on such issues;
- Anyone caring for a protected party, or concerned for their welfare;
- A protected party’s attorney (if any); and
- A protected party’s deputy (if any).
Essentially, the Court will hear the evidence of all parties in the case and apply the above analysis to the facts of the matter before making a decision.
The notion of best interests is not directly synonymous with a protected party’s wishes and feelings. That is not to say that the Court knows better than a protected party does, but because a protected party is deemed to lack capacity, their views will be one of a number of factors the Court will consider. The same applies to the views of those closest to a protected party. They will be heard and given the opportunity to put forward their views, but the Court is by no means bound to do as those people ask.
Overall, best interests is not a clear line in the sand, nor is it always very obvious. There are some cases in the Court of Protection that become very complicated, and when there is a significant difference of opinion between the parties involved, they will often have different ideas of what is in a protected party’s best interests. The Court’s role can sometimes be to determine which of those parties is the most credible before establishing the facts on which a decision may be based.
How can Nelsons help?
If you have any questions regarding the subjects discussed in this article, please contact Lewis or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.