The remedy is available to individuals and public bodies alike, and it will usually be better, tactically, to be the claimant rather than the defendant. Individuals do not have to be related to the person concerned, in order to have sufficient interest to be allowed to claim the declaration which will make the proposed action lawful; public bodies will usually have sufficient interest if they are social services authorities, Care Trusts, Health Authorities, the Police or any other organisation working in the field of Adult Protection.
The incapacitated person is made a defendant as well as the body or individual opposing the suggestion for the future which is proposed by the other party. This ensures that the incapacitated person is separately represented and obtains procedural protection from the Official Solicitor.
The procedure is not available in the situation of physical incapacity or illness, unless that illness has reached a stage where the mental capacity of the individual has been so compromised as to make it likely that s/he can no longer make a decision for themselves.
While the jurisdiction was being developed, it was used by local authorities somewhat doubtfully as to their right to act as the protector of the incapacitated person, especially if the intervention appeared to be contrary to the perceived wishes of the individual and carers, relatives, or other persons involved. Fortunately the Court of Appeal in Re F (2000) cleared away this doubt and emphasised that it may be the duty, and not merely the power, of the local authority, in some cases, to take the step of going to court.
All that is required is that the court be persuaded that a serious, justiciable issue is being brought before the court by someone with a genuine and legitimate interest in obtaining a decision against an opponent. Other recent cases in this field have stressed that it is what is objectively seen as being in the best interests of the patient, not the carers’ or the relatives’ best interests, which will determine the outcome of the proceedings.
For more information see January 2000 Legal Action, p15, and February 2000, page 16 (Chahal and Morris).
Related Questions:
>What sort of things does the procedure for seeking declaratory relief cover, with regard to the issue of protecting vulnerable adults?
Related topics leading to further specific questions:
Remedies and Emergency Powers in the context of Adult Protection