Ombudsman Complaints and Improving Social Care

In November 2017, The Local Government and Social Care Ombudsman released their review of adult social care complaints for 2016/17. The Ombudsman’s report publishes the complaints data for adult social care work across the UK.

The figures show that 63% of adult social care investigations were upheld and the number of complaints and enquiries across the whole social care sector rose by 3% from the previous year. There was also a noticeable increase in complaints and enquiries regarding care arranged privately which was up by 16% from year ending 2016.

The Ombudsman reports that the principal areas that attracted complaints included care assessment and planning, charging for social care and adult safeguarding. Residential care and home care were the two largest areas of complaints, whereas sheltered living received fewer complaints.

So why are complaints to the Ombudsman so important? Local Council Social Services are required by law to make suitable arrangements for those who have social care needs to make sure that they are safeguarded from risk of harm or abuse. As such, it is paramount that Local Authorities are carrying out their duties responsibly. The Local Government and Social Care Ombudsman work with Local Authorities to certify that practices and procedures are in place to ensure that Local Authorities can meet their duties and avoid failings and in turn ensuring that injustices are not repeated.

Furthermore, making a complaint to the Ombudsman can not only provide a positive outcome for the complainant and their relatives but can also have an impact on others who use the service. The Ombudsman references a case from a previous year whereby “one person’s complaint about the way a council charged for care lead to more than 60 people, who had been similarly affected, receiving refunds.”

What powers does the Local Government Ombudsman have? The Ombudsman recommends remedies to improve the Local Authority services and to put things right with the aim of improving the service for many others. The Ombudsman can recommend that the complainant receives an apology, that the Local Authority provides a service that the complainant should have had but has not yet received, request the Local Authority reconsiders a decision that it did not take properly, provide recommendations to improve procedures and in certain circumstances recommend compensation and refunds.

Please see related posts on funding options for social care. If you would like advice on social care services, please contact our Deputyship Team.

Are you entitled to Disability Benefits?

Whether you or a family member suffers from a disability, it is important to know that financial support is available to assist you in living a safe and comfortable life, whether at home or in a care home.

Most of our clients require some level of care, whether it be for someone who has lost their mental capacity or someone who has been physically injured in an accident. There are a variety of benefits that might be available and we can help ensure that you are claiming everything you are entitled to.

Employment and Support Allowance (ESA) offers financial support to those where their disability affects their ability to work.  ESA is available to those who are unemployed, self-employed or employed. Before you can claim ESA, you must undergo a work capability assessment to determine the level of difficulty faced in the working environment. There are two types of ESA, income related ESA and contributory ESA.

Personal Independence Payments (PIP) are available for people who require support in getting around or doing everyday tasks. If you are aged between 16 – 64 then you might be eligible.  PIP is split into two components, a mobility component which is for those that need assistance in getting around and a daily living component, for personal care.

Attendance Allowance (AA) is a benefit for people over the age of 65 who require assistance with personal care due to their disability.

Even if you have been declined a benefit in the past, you should consider applying again, if you believe that your circumstances have changed or a new health problem has arisen.  It is important to remember that benefits are available not only to those that suffer with physical disabilities but also to those who have acquired brain injuries and some mental health conditions too.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

What duties do local authorities have towards children and young adults with special educational needs?

A child or young adult has special educational needs if they have a learning difficulty or disability which requires special educational provision to be made for them. Children/young adults have a learning difficulty if they:-

(a) Have a significantly greater difficulty in learning than the majority of the children of the same age; or

(b) Have a disability which prevents or hinders them from making use of educational facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions; or

(c) They are under compulsory school age and fall within the definition of a) or b) above, or would do so if special educational provision was not made for them.

Children must not be regarded as having a learning difficulty solely because their home language is different from the language in which they are taught.

Local authorities have a legal duty to identify and assess the special educational needs of children and young people for whom they are responsible. Once a local authority becomes aware that the child/young person in their area has or may have special educational needs, the local authority must ensure that those children/young people receive support to help them in “achieving the best possible educational and other outcomes”.

Each local authority is required to publish a Local Offer detailing relevant information about all the services and support it expects to be available for children/young people with special educational needs and/or a disability for whom they are responsible. The Local Offer must set out what the local authority expects in terms of support provided by schools/colleges, educational health and care provision, training provisions, transport arrangements from home to school/college and support for preparing the young person for adulthood and independent living.

If a school (or parents) are concerned that the educational needs of a child are not being met, in spite of the child receiving extra support, the child may be placed on School Action or School Action Plus. School Action is used when there is evidence that the child is not making adequate progress at school and there is a need for action to be taken to meet learning difficulties. This could involve providing the child with additional teaching support, specialist equipment and/or different learning materials. If the child does not make adequate progress through School Action, they may then move on to School Action Plus. This will involve the school obtaining external advice from education support services, the local health authority, social services and/or specialist advisory services. This could include advice from an educational psychologist, occupational therapist and/or speech and language therapist. If the child is receiving support through School Action or School Action Plus their progress should be reviewed at least twice a year and an Individual Education Plan should be written for the child.

A local authority must carry out an Education Health and Care Needs Assessment if a child/young person needs or may need more support than their school can give them. If the child meets the criteria for an Education Health and Care Plan, the local authority has a legal duty to provide the support included in the plan to meet the child’s educational needs. If the local authority unreasonably refuses to carry out an Education Health and Care Needs Assessment and/or fails to deliver the support provided in the plan, they can potentially be challenged by way of judicial review proceedings.

It is important to stress that not all children will require special educational provision to be made for them, even if they have special educational needs. In addition to this, only a small percentage will meet the criteria for an Education Health and Care Plan, as a result of the complexity of their needs. However, when special educational needs cannot be met in a mainstream setting, a specialist provision needs to be considered.

In the Court of Protection department, we support clients who lack capacity to ensure that their educational needs are being met. We also challenge the local authority, where appropriate, if they refuse to carry out relevant statutory assessments and/or fail to provide support that our clients are entitled to.

Nicola Gunn is a partner in the Court of Protection and Family department. If you need any assistance, please contact Nicola on 020 7940 4057 or email Nicola Gunn.

 

Deprivation of Liberty. When does this apply?

Liberty means being free to do the things you want to do and live where you want to live.

Deprivation of Liberty means taking away the freedom of a person.

This is common in Court of Protection cases and an issue that needs to be looked at very carefully.

If you can make an informed choice, then you are entitled to say no to a particular course of action. However, there are times when your informed choice might be overridden, for example, if you are detained under the Mental Health Act and temporarily incapacitated.

Deprivation of liberty could take place anywhere. For example, in a care home, hospital or even in your own home.

On occasions, it is not possible to make your own decision and an individual will have to be deprived of their liberty as to do so is deemed to be in a person’s “Best Interests”.

What are the Deprivation of Liberty safeguards?

  • Is an individual aged 18 or older;
  • Is he or she suffering from a disorder or disability of the mind?
  • Does he or she lack the capacity to give consent to their care or treatment.
  • Is the individual receiving care or treatment that might amount to a Deprivation of Liberty under Article 5 of the European Court of Human Rights.

It is the responsibility of the supervisory body to determine whether a person has to be under a deprivation of liberty safeguard.

If the deprivation of liberty is made, this is limited to a period up to 12 months. Thereafter, there will be a further review and consideration of whether a less restrictive course of action might be available or appropriate.

If you believe that a member of your family or someone you is affected by the above, then please contact our Court of Protection team who will be able to offer assistance.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Should we be paying a top up for care accommodation?

How a person’s care is funded can be an extremely complicated area – there are many different types of funding that a protected party may be eligible for and as an Attorney or Deputy it is important you are claiming these where appropriate.

If the protected party is eligible for Local Authority funding, then a personal budget will be created. This is a statement which sets out the cost to the Local Authority of meeting the protected party’s needs and the amount which they must pay and, if appropriate, the amount the protected party must contribute.

The Local Authority must provide at least one genuine option for a care facility which is within the protected party’s personal budget. It may then be the case that the protected party has the funds to pay a “top up” to enable them to stay in a more expensive facility by paying the difference, or it may be that a third party could pay the top up for them.

As a Deputy or Attorney you should be considering if that top-up is appropriate or if you can reduce the top up to save the protected party’s funds. If you can successfully argue that the protected party has a need and not a preference for certain care or care homes, then the Local Authority may have to increase their contribution.

Whilst it is difficult to show that the protected party has a need and not a preference for specific care or care accommodation, it is possible. Factors which may help demonstrate this include the impact of moving the protected party – this could be particularly relevant where a care home increase their fees and the Local Authority argue that the new fees are no longer within the budget and so a top up is the only way to keep them in the care home; location of family to the care home or potentially location of the care home to where the protected party has been living. For example, if a protected party suffers from dementia and their symptoms are exacerbated when they are in unfamiliar surroundings, it could be argued that a care home nearer where they have lived for 40 years is necessary compared to a cheaper care home which is much further away from their local area.

If you are a Deputy or Attorney and need advice regarding funding care accommodation please contact our Court of Protection team on 020 7940 4060.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Anthony Gold hosts roundtable consultation on the Islamic principle of zakat on PI settlements; 28th November 2017

We were very pleased to be invited to host a roundtable discussion organised by Simply Ethical, a provider of Ethical and Sharia compliant investment solutions on the launch of their consultation concerning the payment of religious tax on awards received following a personal injury claim.

Senior Judge Denzil Lush, a retired Court of Protection Judge was the keynote speaker and provided an insight and overview of past discussions relating to Muslims and the interaction between their personal religious beliefs and English Law. Religious obligations will generally be taken into consideration so far as is possible under the English Law, though serving the best interests of the claimant is paramount.

What is zakat?

Zakat is one of the five pillars of Islam and represents a religious obligation for all Muslims who meet the necessary criteria of wealth to give 2.5% of their wealth away in charity (or deemed as a religious tax by some) every year. This is a personal decision made by Muslims living in England & Wales in addition to their obligations imposed by English law to pay tax.

In recent years, there has been growing awareness about the crossroads faced by many Muslims bringing personal injury claims and those without capacity and represented by Deputies in the Court of Protection. There is currently no practical guidance to enable Deputies to make such payments, if requested, on such settlements. The issue to be determined relates to the religious duty of the claimant and Deputy’s responsibility to ensure the damages received are managed and are secured to maintain a reasonable standard of living.

Are damages deemed wealth for the purposes of zakat?

While zakat is incumbent on Muslims, there are a number of questions that arise when it is raised as an issue by a Muslim claimant within the English legal system. For example:

i) Is it payable on damages that are usually insufficient to meet a client’s future needs and to compensate them for their past losses?
ii) Is zakat payable by children who are awarded compensation?
iii) What about adults who lack capacity but, because of their PI award, meet the necessary criteria of wealth?

These are important questions that are increasingly being put to lawyers, deputies and the courts alike. Furthermore, clarification is being sought by specialist investment fund managers who are instructed to invest such awards like Simply Ethical.

This was the aim that tied everyone together at the roundtable consultation that was held at Anthony Gold on 28 November.

Attendees & discussion points

We were fortunate to host delegates with a wide breadth of experience from many different organisations and backgrounds, including Senior Judge Denzil Lush, Mufti Faraz Adam, an Islamic Scholar from the National Zakat Foundation, Patricia Wass from the Office of the Public Guardian, Stuart Hutton, CEO of Simply Ethical, the mother and sister of a beneficiary of the Court of Protection and other solicitors, barristers, finance and investment advisers and court deputies.

Presentations were given by:

  • Simply Ethical – The purpose of this event, our experience of the key issues
  • Denzil Lush – Role of the Court of Protection and how it sees/deals with faith issues like zakat, investments etc
  • National Zakat Foundation – What is Zakat, Key Principals and Key Issues re Court of Protection/PI cases
  • Court Deputy’s Perspective: Stacey Bryant from Foot Anstey
  • The Office of the Public Guardian: It’s role and how it could assist
  • A Beneficiary’s perspective: How they view this issue
  • A Law firm’s perspective: Anthony Gold – Overview of the Discount rates

With a wealth of knowledge and experience at the table, a range of important topics were discussed, including:

i) Shariah-compliant investments;
ii) Wills;
iii) the nature of zakat as an Islamic principle and to who it applies; and
iv) personal injury claims and the nature of damages awards.

The outcome of the discussion was very positive and showed that those involved in looking after the best interests of the claimants are generally enthusiastic to help Muslim clients who seek to fulfil this religious obligation. The discussion allowed for a better understanding of the nature and conditions of zakat in order to be able to advise their clients.

It was agreed that tangible, written guidance about the issues discussed would be the most useful for all the parties involved. This is to act as a guide to advise claimants, beneficiaries and their lawyers and advisors on everything from Shariah-compliant investments and wills to the pluralism of the Islamic laws surrounding zakat and their various interpretations.

A draft paper that translates the day’s discussions will be produced early in the New Year and this will be distributed for feedback. It is hoped that the Office of the Public Guardian will eventually publish the paper in its final form going forward to provide the much-needed guidance for all concerned.

Anthony Gold were very pleased to host the consultation and be part of the discussions that will clarify the issues surrounding the difficult questions posed by the payment of zakat in the modern world, for the benefit of claimants, beneficiaries, their representatives and the courts.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Case Commentary: NHS Foundation Trust v QZ [2017] EWCOP 11

The Background:

 

The patient in this case, QZ, was a woman in her 60’s who had been suffering from postmenopausal bleeding for over a year. The cause was unknown, however there was a high risk (30-50%) that it could be a form of gynaecological cancer.

QZ lacked capacity to make decisions in relation to her own treatment on the basis of her long-standing diagnosis of chronic, treatment resistant, paranoid schizophrenia. She also suffered from auditory hallucinations. From a young age, QZ had been known to mental health services. QZ was frequently admitted into hospital and had lived in residential care for many years.

QZ’s family included her four brothers. However due to her condition she refused to recognise them as such. QZ had also been married in her youth although contact with her husband had ceased long ago. As such, the family had limited input into what would be in QZ’s best interests.

 

The Application:

 

An NHS Foundation Trust applied to the Court of Protection for an Order permitting them to carry out a hysteroscopy and endometrial biopsy under general anaesthetic on QZ to identify the cause of her ongoing bleeding. If QZ was found to have a cancerous tumour, or abnormal pathology then the Trust required authority from the Court of Protection to carry out an urgent keyhole hysterectomy under general anaesthetic and endorse the proposed care plan for QZ which would require her to be transferred from her residential care home and into hospital for treatment and post operative care until discharge. This would be a serious operation and a drastic change for QZ.

QZ had for several months attempted to conceal her symptoms. Eventually QZ attended a hospital appointment where an external examination and scan were carried out. However QZ refused, despite sensitive and cautious persuasion from her carers, to return to hospital for more invasive internal investigations. QZ had a deep-seated long standing and entirely delusional belief that she was being poisoned by her carers and doctors and that she was at risk of being raped by them.

Following the application, the Official Solicitor was appointed to represent QZ and uphold her best interests. The Official Solicitor found this to be a very difficult case, and were unclear on what their position would be, given that the treatment proposed was so intrusive. There was no doubt it carried a significant risk on QZ’s mental health and would remove her from the stable and comforting environment of her residential care home.

 

The judgement by Mr Justice Hayden:

 

Mr Justice Hayden considered and reviewed the extensive medical evidence put before him from a Consultant Forensic Psychiatrist, a Consultant Gynaecological Oncologist and Laparoscopic and Robotic Surgeon. In particular Mr Justice Hayden considered the overall 5 year survival rate of 79-82% for all endometrial cancers based on its prognosis, stage, grade and histological type. However, in case reports of patients who declined surgical treatment, survival varied from a few months to a few years.

On the evidence, QZ was presenting with symptoms typical of the most common cancer, cancer of the womb, and the procedural guidelines advise immediate referral of any postmenopausal patient.  A year had already passed.

However Mr Justice Hayden also recognised that authorising the Order requested by the Trust would result in coercion of QZ and a degree of force.

Ultimately the judge had to decide whether an inevitably serious and potentially prolonged collapse in QZ’s general mental well being, “weighed more heavily in the balance than the potential benefits involved in investigating the possibility of cancer” and loss of life.

Baroness Hale in Aintree v James, had set out the proper approach decisions makers should take. All relevant factors must be considered, including the patient’s welfare in the widest sense to include medical, social and psychological welfare. Further “they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.

Mr Justice Hayden relied on the clearly established approach of evaluating P’s best interests under s4 of the Mental Capacity Act 2005. As such, Mr Justice Hayden could not discount QZ’s views merely because they were delusional or irrational especially as they were real to QZ. However he also took into account QZ’s resilience, her ability to fight back and the prospect of many healthy years ahead of her.

As such the NHS Trust were granted permission to proceed.

This case demonstrates the challenging and niche nature of cases brought before the Court of Protection to determine often tricky and intrusive health and welfare matters. It is an incredibly difficult task to determine the best interests of those lacking capacity and the Court will continue to consider all factors set out in s4 of the Mental Capacity Act and apply them to the individual circumstances of each case.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The associated risk for social care professionals who fail to take steps to promote capacity

In the case of CH v A Metropolitan Council [2017] EWCOP 12, the Court of Protection’s ruling imposed an important warning to social care professionals. The court ruled that relying upon a person’s lack of capacity as justification for making best interests decisions will trigger a reciprocal duty to take all reasonable steps to enhance that person’s capacity.

In the summer of 2014, Mr and Mrs H wished to conceive a child. The couple sought help from the NHS fertility clinic. Before this, the couple had enjoyed a normal sexual relationship during their seven years of marriage. Mr H had Down’s syndrome and the NHS staff were concerned at his potential lack of capacity to make a decision about having fertility treatment and engaging in sexual intercourse. As a result of the concerns the NHS made a safeguarding report to the local authority. The local authority intervened and decided to instruct a consultant psychologist to assess Mr H’ capacity to engage in sexual intercourse.

Following a long delay of six months, in January 2015 the psychologist reported that Mr H did lack capacity to decide whether or not to engage in sexual intercourse. She did however emphasize that formal sex education should be provided to Mr H and that capacity should be subsequently reassessed. This recommendation gave heed to the principle set out in the Mental Capacity Act 2005, section 1 (3) which states that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”. Unfortunately for Mr H and his wife, the local authority failed to follow this obligation to take all practical steps to enhance his decision-making capacity, despite the psychologist’s advice. The result of this was that Mr and Mrs H’s life was unduly restricted and interfered, which resulted into a long period of celibacy.

The local authority sent a letter to Mrs H telling her she must immediately cease sexual intercourse with her husband as he lacked capacity to consent. Mrs. H was warned that she might face a serious criminal offence and safeguarding measures would be taken should she fail to desist from sexual intercourse with her husband. Mrs H heeded the warning of the local authority and moved into a separate room. This had a devastating effect on the marriage. Mrs. H ceased affection towards her husband which caused confusion for Mr H. This was further exacerbated by his learning difficulties.

The local authority failed to implement the sex education programme for Mr H. A year following the local authority decision, Mr. H’s sister applied to the Court of protection to implement the psychologist’s advice. Mr. H’s sex education finally began in June 2016, 15 months after the couple had been told to cease sexual relations.

Following two consecutive sessions of sex education, a court appointed expert assessed Mr H and found that Mr H did have the capacity to consent to sex. The view was accepted by the local authority and the couple was able to resume their marital relationship.

The overall effect of the local authority’s inaction under section 1 (3) MCA; the long delay and the wrongfully imposed celibacy on the couple (not to mention the inherent breach of Article 9 – right to privacy) saw the local authority pay over £40,000 in costs and damages to Mr H.

This case demonstrates the potentially significant financial costs that may be incurred for interfering with someone’s life without heeding the duty to take all practicable steps to aid a person to obtain capacity to make their own decision.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Taxation of Trusts – Registration with HMRC – New online system

The long-awaited Trusts’ Registration Service (TRS) is now live.  This replaces the paper system, which has been in suspension for some time.

The old system was one whereby trustees were obliged to fill and post in a registration form (Form 41G). They would then have to notify HMRC by post of any significant changes to the trust. Now all registration can be done online.

Practitioners should welcome the replacement of the old system, which was slow, inefficient and infamous for losing documentation. Sadly however, the launch of the online system has been bedevilled by technical hitches, frustrating many registrations.  Ho Hum!

Despite the technical problems, the deadline to register trusts remains the 5th January 2018. Penalties will be incurred if a trust is not registered by then. Hence it is best not to leave things to the last moment.

Not all trusts need registration.  Essentially, the exceptions are those trusts which are not liable to pay tax, principally bare trusts and those with no income or capital gain or IHT liability.  Advice should be taken long before 5th January 2018 to ensure registration where appropriate.

Going forward, the trust registration deadlines will be 5th October and 31st January.  Some trusts will not need registration going forward.  Those with de minimius tax liabilities will be able to apply for exemption from the obligation to submit tax returns. Again, advice should be sought for both registered and unregistered trusts where the trust has incurred a tax liability.

Can I become a Welfare Deputy?

I am frequently asked by clients to consider whether they can be appointed to act as a Welfare Deputies on behalf of an incapacitated relative. Applications to appoint Property and Affairs Deputies are very common and often successfully made in the Court of Protection. That is because there is usually an intrinsic and urgent need to gain access to bank accounts or other financial institutions to ensure that an incapacitated person’s (P’s) affairs can be promptly administered on their behalf. The position with regards to Welfare applications is considered differently by the Courts.

When considering whether to appoint any Deputy (Property & Affairs or Welfare) the Court of Protection will have regard to s.16(4) of the Mental Capacity Act 2005 which states that:- in relation to a matter or matters concerning P’s personal welfare or P’s property and affairs and when considering whether it is in P’s best interest to appoint a Deputy the Court will have regard to the fact that:-

s.16 (4)

(a) A decision by the court is to be preferred to the appointment of a deputy to make a decision, and;

(b) The powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

In the case of Re DC Senior Judge Lush stated that it is difficult to apply s. 16(4) of the MCA 2005 to property and affairs situations as there is “almost always a need for a deputy to carry out ongoing financial transactions which are often routine and rudimentary in nature and require little or no consultation with others”.

By contrast, in many personal welfare matters, the Court does not need to appoint a Welfare Deputy because “the decision-making is essentially a collaborative process between family members, care staff, social workers, healthcare professional and anyone else who has an interest in the welfare of the person concerned”.

Mr Justice Baker was cited in the case of G v E [2010] COPLR as stating that “the Act and the Code are constructed on the basis that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together. It is emphatically not part of the scheme underpinning the Act that there should be one individual who as a matter of course is given special legal status to make [Welfare] decisions”.

The Court of Protection is therefore often reluctant to appoint Welfare Deputies and is far more likely to consider a Welfare application if it relates to a specific and isolated issue that cannot be resolved by agreement with the wider care or treatment team.

It should be noted that most people applying for a Welfare order or determination will require permission from the Court to ensure that the application is “necessary and well-founded” a requirement highlighted by Senior Judge Lush in the matter of Re: DC. Applicants must be careful not to submit vexatious or malicious applications which are very unlikely to be granted permission to be heard. Examples might include families arguing about the best care home placement for an elderly relative not by reference to the elderly relatives best interests, but by reference to their personal convenience when visiting P at the proposed home.

It should be noted that the MCA 2005 offers protection to those involved in “acts in connection with care or treatment” under s.5 and is another reason why a Welfare Deputy is not usually required. Section 5 provides protection to those involved in the collaborative welfare decision making process affecting P and will extend to family members working with care staff, social workers and doctors, amongst others.   To receive protection under s.5 the person carrying out the act “in connection with” the care or treatment must:

s.5 (1)

(a) before doing the act, take reasonable septs to establish whether P lacks capacity in relation to the matter in question and

(b) when doing the act, the person must reasonably believe

 i. that P lacks capacity in relation to the matter, and
ii.
that it will be in P’s best interests for the act to be done.

s.5 (2) The person doing the act will not incur any liability in relation to the act that he would not have incurred if P:-

(a) had had capacity to consent in relation the matter, and

(b) had consented to the act being done.

Section 5 does not however exclude a person’s civil liability for loss or damage or indeed any criminal liability resulting from his or her negligence in doing the act.

The provisions of the MCA 2005 also extend to Welfare decisions undertaken by Health and Welfare Attorneys appointed under Lasting Powers of Attorney (LPA). It is often incorrectly assumed that a Health and Welfare Attorney will be the only person able to make decisions under a valid LPA.

However, in practice, many if not most of P’s welfare decisions where an LPA is in place will be undertaken by their direct care team such as carers in a care home, hospital workers or social services under the provisions and protection of s.5 MCA 2005. Those day-to-day decisions can be made without direct agreement or consultation from the appointed Welfare Attorney and of course, it would be impractical to obtain that consent for many aspects of day-to-day personal care.

A Welfare attorney will however ultimately be able to assert their authority and decision-making functions should they disagree with a course of action proposed by the direct care team. That is one benefit of considering executing a Health and Welfare LPA if you feel strongly about passing over decision making powers to a trusted individual involved in your care.

We have experience in advising on all aspects of Court of Protection applications to include both Welfare determinations and Property and Affairs matters. Please contact a member of the Court of Protection team on 020 7940 4000 should for further information.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*