A smiling carer chats with an elderly lady

Challenging restrictive decision making

I frequently find myself reminding a Local Authority or Health Authority seeking to make decisions on behalf of elderly people or vulnerable adults without consulting family or without taking into account the individual’s views, that the Mental Capacity Act 2005 does not allow for unilateral decision making.

Often, this is not due to any malice on the part of the professionals involved, but perhaps a fear of not getting it right, or exposing the vulnerable person to some risk of harm. We live in an ever increasing blame culture, so the fear of later being held responsible for the decision has made these organisations and the people who work in them perhaps too risk adverse.

I have always had a more risk positive attitude, perhaps because of the contact I have had with family members and also because of the clear themes coming through cases that have been heard in the Court of Protection. These cases indicate that there should be greater emphasis on supported decision making; greater autonomy given to vulnerable adults and less weight given to a risk adverse decision making process.

Getting the balance right

The following quotation, from a recent decision (CC v KK and STCC) concerning an elderly lady’s capacity to decide where she should live, succinctly sets out the balance that we need to achieve:

“The fact is that all life involves risk, and the elderly and the vulnerable are exposed to additional risks and to risks they are less equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else…. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. What good is it making someone safer if it merely makes them miserable? None at all! And if this is where safeguarding takes us, then is it not, in truth, another form of abuse – and, moreover, abuse at the hands of the State?”

This reminds me of another case where the Court of Protection decided that a woman with dementia did have the capacity to make the decision to go on a cruise (as she did every year with her partner) and that even if she hadn’t, it would be in her best interests to do so. Quality of life must be balanced against imposing a restrictive decision. On occasion, cautious decision makers place too much emphasis on alleviating all risk of harm as opposed to putting in place mechanisms to ensure the risk is properly managed.

Are things changing as a result?

Despite these cases I am still coming across restrictive decision making. A current case where I am concerned that risk is being unequally balanced against quality of life involves an individual who has been deprived of his liberty in a care home that he finds wholly inappropriate for his needs. He is further restricted as a result of decisions taken on his behalf by a Local Authority under a deputyship order relating to his financial matters. This is not uncommon.

The Official Solicitor, appointed to represent individuals who lack capacity to carry out the litigation themselves, has recently given an interview in The Times (4 April 2013) and has said that ‘Patients’ families are asserting their rights or what they perceive to be their rights and becoming more assertive with clinicians; clinicians are becoming more cautious and seeking the protection of a court order…’

The profile of the ‘most secret court in England’ is rising and is widely acknowledged as being an excellent forum for challenging restrictive decisions, or for ensuring that the Mental Capacity Act is followed when decisions are made.

If you need help in challenging a restrictive decision by an Authority or are worried that someone is being assessed as lacking capacity incorrectly, please contact me for advice.