A smiling carer chats with an elderly lady

Supporting decision making

I have noticed another thread of decisions coming from the Court emphasising that an individual who lacks capacity should be supported in making certain decisions, even if on a first look the decision wouldn’t appear to be in their best interests.

In an unreported case of NYC v PC and NC in late 2012, a woman (PC) was deemed as lacking the mental capacity to resume contact with her husband, who could pose huge risks to her, having just been released from prison.

Although one might have expected the social worker involved to offer a more restrictive approach to the decision made, she actually considered that, notwithstanding the risks, it was in PC’s best interests for them to resume their married life. Not allowing contact to go ahead would have been seriously distressing for the woman due to her strongly held wishes. The Court was therefore asked to confirm that the Local Authority could decide that PC should be allowed to resume contact with her husband.

In giving this confirmation, Mr Justice Hedley took the opportunity to talk about making ‘unwise’ decisions on behalf of the individual who lacks capacity and expressed the view that “it may be necessary from time to time to leave open to the protected person the option of taking an unwise decision which others, who are fully capacitous in her position, may themselves have taken.”

He appeared to take the same approach in the case of the unreported case of Re P (abortion) earlier this year.  With permission given to the press to report this case, the Independent refers to Mr Justice Hedley’s warning ‘that courts and health officials should generally refrain from trying to decide whether someone with limited mental functions will be able to bring up a child and must instead concentrate solely on whether the pregnancy itself is in their best interests.’   The basis for his decision is that the legal framework should support individuals in making decisions, rather than protect them from making mistakes where there are already legal procedures in place to address any such mistakes – such as child care proceedings to remove a child from a parent who would put a child at risk.

Supported decision making in practice

I am currently advising on a case where one of the parties is arguing that a lack of sufficient information has been provided to an individual to support them in taking a decision about a particular (yet not specific) matter. Although the case of CC v KK and STCC was raised with a request for additional information to be provided, the information was simply not available. However, medical evidence revealed that on the balance of probabilities the individual did lack capacity to make the particular decision and that the introduction of more specific information would not make a material difference. The point was not disputed in the end, but it would have been interesting to have seen how the Court would have dealt with that, in light of CC v KK and indeed with the decision specific nature of the Mental Capacity Act 2005, yet balancing this against the need for the matter to proceed more swiftly to enable additional information to be obtained.

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.