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Mental Capacity Act
What will change in relation to best interests?
• When there is a dispute, we let relatives’ views hold sway, as if they already had a decision-making power over the welfare of their loved ones, once the person loses capacity. What we are really doing is back-watching, because if the relative agrees with us, we don’t get sued, in reality.
• Advance decisions are going to have to be obeyed, even if people are screaming at us to resuscitate or feed a person in what they see as the person’s best interests… unless there is something dubious about the advance decision itself.
• Holders of LPAs are going to have a trump card over refusing care or treatment, unless we bother to go to Court to get them ousted, or get a best interests order against their opinions. Whether we will or not will depend on our organisational culture, our attitude to litigation, and our resources.
• We act in emergencies and just hope for the best. The Act as currently worded says ‘Nothing stops anyone’ from wading in but implies that one will need to go to court to be safe. The case law says we should definitely go to court before wading in. And the new Bournewood safeguards positively authorise detention pending application to court. Will we actually bother??
