Some of the content presented on our website has been generated with the assistance of Artificial Intelligence (AI). We ensure that all AI-generated content meets our high standards for accuracy and relevance.
A large number of cases before the Court of Protection revolve around the determination of a protected party’s capacity. A finding that a protected party lacks capacity will require further decisions surrounding the issue where capacity was questioned. A common example of this is when a protected party’s capacity in relation to medical treatment is questioned and, in the event, a protected party lacks capacity, a decision must be made as to the medical treatment they should receive.
A recent example of this was the case of A Mental Health Trust v ER (by her litigation friend, the Official Solicitor) and another.
A Mental Health Trust v ER (by her litigation friend, the Official Solicitor) and another
Background
This case had three elements to it:
- Whether the Protected Party had capacity in respect of litigation;
- Whether the Protected Party had the capacity to decide on treatment for her anorexia; and
- If not, what treatment is in the Protected Party’s best interests.
If the Protected Party was, therefore, found to have the capacity to decide on her anorexia treatment the Court would not have been required to consider what treatment was in her best interests as this decision would ultimately lay with her.
What was decided?
It was agreed that the Protected Party lacked capacity in respect of the litigation. All parties were in agreement that she did maintain capacity in relation to deciding her anorexia treatment. The expert evidence, however, was to the contrary and suggested the Protected Party may lack capacity on the basis she was unable to comply with her treatment when she was not in the hospital’s care.
In order to weigh up the evidence, the Judge also met with the Protected Party. The Judge commented that she appeared to be aware of her anorexia and treatment and was able to discuss this in great detail. Despite this, it was held that the Protected Party lacked capacity in respect of her treatment as a result of the expert’s findings, which suggested she was unable to apply and weigh up the information relating to her anorexia.
On the finding that the Protected Party lacked the capacity to make decisions in respect of her anorexia, the Court then considered what treatment would be in her best interests. The Judge again considered the conversations with the Protected Party and noted she would not like to be an inpatient and this would not be in her best interests. It was agreed the Protected Party would continue to receive support in the community but this should be increased to ensure her compliance.
Comment
This case demonstrates the common two parts to Court of Protection proceedings, being:
- The finding of a lack of capacity; and
- Then what is held to be in the Protected Party’s best interests.
It was apparent in this case that the Court will consider many factors, including the Protected Party’s wishes, to determine what is in their best interests.
How Nelsons can help
Stuart Parris is a Trainee Solicitor at Nelsons.
If you believe a friend or family member lacks capacity and would like to involve the Court of Protection, please contact a member of our specialist Court of Protection Disputes team in Derby, Leicester or Nottingham who will be able to assist.
Please call 0800 024 1976 or contact us via our online form.