Q&As on Mental Capacity and Best Interests decision-making

If, in an unwanted scenario for example, in the workplace, where an employee found themselves in an unwanted situation, cornered by a clent with no escape route and has exhausted all other recommended approaches and interventions to mitigate that situation and feels that they are in imminent or immediate danger and are fearful for their life – if they then choose to use reasonable force to defend themselves, under Common Law and the right to Self Defence, does this Law protect them?

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There is no doubt at all that anyone whose employment puts them in a position of risk has the right to use the common law right to defend themselves. Self defence amounts to a defence to criminal or civil proceedings for assault or trespass to another individual’s person. To put that another way, any procedure […]

If, in an unwanted scenario for example, in the workplace, where an employee found themselves in an unwanted situation, cornered by a clent with no escape route and has exhausted all other recommended approaches and interventions to mitigate that situation and feels that they are in imminent or immediate danger and are fearful for their life – if they then choose to use reasonable force to defend themselves, under Common Law and the right to Self Defence, does this Law protect them? Read More »

Can a deputy with a welfare power prevent other people from seeing the person (known as ‘P’) for whom they have the deputyship power?

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In general it is assumed by the public, that a deputy has the right to decide who the person for whom they have deputyship power (‘P’) has contact with, even if nothing specific is said in the order conferring their deputyship and even though no-one is thereby specified. In practice this assumption means that a

Can a deputy with a welfare power prevent other people from seeing the person (known as ‘P’) for whom they have the deputyship power? Read More »

My Council has said no to funding our son’s care in a property we own. They have said ‘they are not setting up any further supported housings through families’ properties’ indicating that our son must go into supported living in another area away from everything he knows locally and is familiar with. Can the council do this? Can my son not choose where he live? The Council said they will only ‘support C in the home with drop in support’ ! Is there a process to appeal this?

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My son with Down Syndrome wants to move into supported accommodation locally with his 2 friends. He is familiar with area: he can catch specific local buses, walk everywhere ie to gym and special needs club, and dance. As parents we own a private house locally that we can rent to a housing association who

My Council has said no to funding our son’s care in a property we own. They have said ‘they are not setting up any further supported housings through families’ properties’ indicating that our son must go into supported living in another area away from everything he knows locally and is familiar with. Can the council do this? Can my son not choose where he live? The Council said they will only ‘support C in the home with drop in support’ ! Is there a process to appeal this? Read More »

We are deputies for both Personal Welfare & Property and Affairs. We are also our daughter’s foremost Best Interests Consultees. As such, what legal standing does a Care Plan, which has been reviewed by the care provider without our knowledge or input, have? What are our rights to: a) insist we have sight of the revised plans and b) if necessary challenge any changes made to it without our knowledge / input?

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Under a Welfare deputyship you have very few rights and it should not be seen as a continuation of parental rights and responsibilities.    Welfare deputyship only extends as far as your daughter’s incapacity with respect to discrete issues. The provider is the day to day best interests decision-maker for Mental Capacity Act purposes. Every word

We are deputies for both Personal Welfare & Property and Affairs. We are also our daughter’s foremost Best Interests Consultees. As such, what legal standing does a Care Plan, which has been reviewed by the care provider without our knowledge or input, have? What are our rights to: a) insist we have sight of the revised plans and b) if necessary challenge any changes made to it without our knowledge / input? Read More »

After years of fighting for an adequate care package at home, my elder sister’s council/social worker offered her a care home and refused to provide a slight increase in care that would have meet her needs in the community. Since she’s been in the care home she has rapidly declined in her physical and mental health as well as her mobility and cognitive/language abilities. She still maintains her own GP, who is shocked by how rapidly she’s declined despite the home providing decent care. She is a thousand times worse in the residential home than she was in her own place with the meager amount of support she was given. Is there anything at all we can do about this to hold the council responsible for failing her in this way?

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Does she have a home to go to, still? I.e. accommodation where she has a right to occupy? It doesn’t have to be HERS – it could be the home of a relative, or the opportunity to have a tenancy in another building in which care could be provided, in theory. If so, ask for

After years of fighting for an adequate care package at home, my elder sister’s council/social worker offered her a care home and refused to provide a slight increase in care that would have meet her needs in the community. Since she’s been in the care home she has rapidly declined in her physical and mental health as well as her mobility and cognitive/language abilities. She still maintains her own GP, who is shocked by how rapidly she’s declined despite the home providing decent care. She is a thousand times worse in the residential home than she was in her own place with the meager amount of support she was given. Is there anything at all we can do about this to hold the council responsible for failing her in this way? Read More »

What are the key differences between Sections 31 and 32 of the Care Act regarding direct payments?

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Section 31 provides for direct payments as an optional way of using your budget after an assessment and care planning process, for those people who have sufficient capacity to request a direct payment, ie understand the essence of what it means, which is, in our view, taking charge of your own commissioning or employment arrangements

What are the key differences between Sections 31 and 32 of the Care Act regarding direct payments? Read More »

In what way do the rules about capacity differ as between adults and children (persons under the age of 18)?

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Medical Treatment for adults Until mental incapacity to consent or refuse consent is proved, no-one, other than an authorised person acting within the Mental Health Act 1983 (and even then, only in limited circumstances), can impose medical treatment on any person, unless the common law principle of it being lawful to do what is ‘necessary’

In what way do the rules about capacity differ as between adults and children (persons under the age of 18)? Read More »

Does a person have to have any particular extent of mental capacity in order to be eligible for intermediate care?

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At the preventative end, (which may in practice be the bit of intermediate care which local authorities agree to fund – as step UP care) crisis management in the shape of respite care for a family who is at the end of its tether, looking after an elderly person, for instance, may well keep people

Does a person have to have any particular extent of mental capacity in order to be eligible for intermediate care? Read More »

Why was it lawful to separate the Siamese twins, and not murder or a breach of article 2, despite the certainty of death for the weaker twin?

Leave a Comment / How the Mental Capacity Act affects the Care Act, Mental Capacity and Best Interests Q&As, Q&As on Mental Capacity and Best Interests decision-making /

In re A (children This case requires no introduction, in terms of the facts, because they were so well publicised at the time. But there is no doubt that some will see it as the thin end of the wedge – ie. once it has been held to be justifiable to kill someone for the

Why was it lawful to separate the Siamese twins, and not murder or a breach of article 2, despite the certainty of death for the weaker twin? Read More »

Who has power to decide whether someone is or is not capable of decision-making for themselves, with regard to a certain issue?

Leave a Comment / How the Mental Capacity Act affects the Care Act, Mental Capacity and Best Interests Q&As, Q&As on Mental Capacity and Best Interests decision-making /

Adults are presumed by the courts to be competent to make decisions for themselves, and thereby entitled to make seemingly irrational or imprudent decisions (from an objective point of view) for themselves, unless someone can be bothered to argue (and prove) otherwise. Children are presumed to be incompetent to make such decisions until they are

Who has power to decide whether someone is or is not capable of decision-making for themselves, with regard to a certain issue? Read More »