Collaborative Decision-Making On Behalf Of Protected Parties

A protected party is an individual who lacks the capacity to make a particular decision or a multitude of decisions for themselves. This is usually due to a health condition or impairment and this includes (but is not limited to) Alzheimer’s and dementia sufferers, people with learning difficulties, or individuals who have been diagnosed with bipolar disorder or rare conditions such as dissociative identity disorder.

These conditions in themselves do not necessarily mean that the protected party lacks the capacity to make decisions, and in order to find out whether the protected party can make a particular decision for themselves, a capacity assessment is usually required.

The assessor (who can be a social worker, a private assessor with qualifications, a GP, or a psychiatrist) will apply the capacity test in the Mental Capacity Act 2005. It is important also to remember that capacity is not a simple question requiring a “yes or no” answer, but a decision-specific concept.

People can appoint an attorney, or several attorneys, to make decisions on their behalf in the event of them later losing capacity and this is accomplished by executing a Lasting Power of Attorney.

There are different powers of attorney for the management of someone’s property and affairs and for decisions concerning their health and welfare. However, if no power of attorney has been executed, it is possible for an individual (usually, but not necessarily a close relative) to apply for a deputyship order.

The Court of Protection is generally quite reluctant however to issue health and welfare deputyships for individuals and this does beg the question:

How are health and welfare decisions taken when there is no deputy?

The answer to that question is not very clear, but the general expectation of the Court of Protection is that decisions that need to be taken will be taken collaboratively by anybody with an interest in the protected party’s welfare. This is quite a broad concept – there could be any number of people and organisations with an interest in the protected party’s personal health and welfare – and it is intended to be.

The intention behind such an approach is to ensure that power is not exclusively given to one individual so that others are not shut out of big decisions, and to protect the protected party from abuse.

So what happens if the protected party may need an operation, specialist care, admission to a care home, or protection from an abusive individual?

Firstly, the protected party’s capacity to make the decision that they need to should be established and if the protected party lacks capacity, it is up to the interested parties to try and reach an agreement.

There is no prescribed methodology for making a decision on the protected party’s behalf, but with the involvement of local authorities and health professionals, processes can be followed and decisions can be made based on inter-party discussions. “Best interest meetings” are often organised by the social worker, and close relatives will be invited to that meeting and given the chance to put forward their views. To aid the parties, assessments may be undertaken by certain professionals ahead of the meeting and documented in a “Decision Support Tool”.

The meeting will usually conclude with an agreed decision being taken but if that decision is not agreed by all, any one of the parties can apply to the Court of Protection for directions. Sometimes this can be done on an emergency basis if say the decision is critical (e.g. continuing life-sustaining treatment, resuscitation, a caesarean section, or protection from an abuser) but if it is not, then it can take a little time – and sometimes a long time – for the case to reach a hearing.

The first hearing may not be the end of the case either. Health and welfare proceedings have a habit of snowballing from one single question into a multitude of different issues. The Court will then be asked to give orders on a number of things. Throughout that process, however, the parties are encouraged to enter dialogue and try to collaborate where possible. Round table meetings occur frequently, and mediation is becoming a more frequent feature of Court of Protection proceedings.

As the process can be complicated to navigate and digest, seeking legal advice is very sensible.