Are ‘best interest decisions’ enforceable?

Laura Thompson 23/09/22 Dignity Champions forum

I wonder if anyone can help me with this as I am struggling to find a definitive answer. If a ‘best interest decision’ is made (assuming the correct processes have been followed), but the person disagrees with it and it is to be heard in the Court of Protection, is it enforceable until that point? This probably lends itself to decisions that are ongoing, such as things like money, who one associates with, use of the internet, etc as opposed to one off decisions such as medical treatment.
Thank you

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Adrain Ezeogwum 27/09/22

If the person is refusing, do they have capacity? A Mental Capacity needs to be completed to ascertain whether they lack capacity before completing a Best Interest Decision.

mike stone 30/09/22

Hi Laura,

I write about 'decisions about treatment', so you are asking about things I don't write about - and don't usually think about.

But, what do you mean by 'if a 'best interests' decision is made'?

Do you mean, a decision which has been made by a legal-proxy with authority over the decision (as stated in section 6(6) of the MCA)? Or, do you merely mean that someone has arrived at a legally-defensible opinion, about what would be in the incapacitous person's best interests?

I suspect, you will not find a clear answer to your question - but, I think Court of Protection judges are likely to want 'behaviour' to be what I would term 'balanced and sensible, 'if erring on the side of' protection/caution' while the issue has been raised but not-yet-considered-by the Court of Protection.

I'll put your question, to a contact of mine who is very MCA-aware (teaches it, etc) and has a background in social work - I'm not confident my contact will have a clear answer, either.

mike stone 01/10/22

Hi again Laura,

I was thinking about your question this morning as I was making my toast.

I suspect your question - 'are best-interests decisions enforceable?' - is framed in a way which the Act doesn't use.

What the MCA does, is to provide a person who makes a best-interests determination by 'satisfying' section 4 - so that section 4(9) would then apply - with the legal defences in section 5 of the Act. I'm currently engaging in what I can only term 'a battle' with much of our 'medical establishment' around this issue in the context of EoL-at-Home. It isn't that anyone 'can enforce' their own best-interests decision - it is that if section 6(6) applies, or if a judge has made a ruling about best interests, then the protections within section 5 cannot be claimed by individuals. Logically - and I think the draft of the new Code of Practice pointed this out somewhere - until the judge or the legal proxy has expressed a best-interests decision, everyone else should be doing what they believe is in the patient's best interests. From memory, what the new Code pointed out amounted to 'UNTIL a Welfare Attorney or Court Deputy has EXPRESSED a decision, other people must continue acting in the person's best interests'.

I'm not sure if that will help - I've pointed an academic at your question on Twitter, and e-mailed another contact about it: if they get back to me, I'll pass on what they say.

In the context of medical interventions, section 6(7) addresses the issue of what can be done while a decision is being awaited from the court - you can try to keep the person alive. But I'm not aware of anything else in the Act about best-interests, which directly addresses this 'while waiting for the court to decide' issue.

mike stone 01/10/22

I've gone to Twitter after I posted my previous post. And Lucy Series, the academic who I tweeted to, has replied with the two tweets below - Lucy Series @TheSmallPlaces - which I think, are saying what I'd said in my own post.

Hi Mike, erm... depends on who made the decision and whether is backed by a court order I'd say!

also what is meant by 'enforcing' it. Unless you have some formal authority (e.g. deputy, LPA) all you're relying on is the defence until you've got the court involved. So the question is could you rely on the defence to do whatever you've decided is BI.