The whole nine yards

The recent case of Wye Valley NHS Trust v B [2015] EWCOP 60 reminds practitioners advising or acting as deputy that even though P lacks capacity, P should still be engaged as far as is practicable in the decision-making process.

Section 1 Mental Capacity Act 2005 (MCA 2005) states:

• Because someone may make an unwise decision, does not mean they should be treated as being unable to make a decision;

• Unless all practicable steps have been taken without success to help that person make a decision, they should not be treated as being unable to make a decision; and

• That decision must be made in the best interests of P.

Section 4(4) of the MCA makes clear that P should be encouraged to participate as fully as possible in any decision which affects him or her.

In Wye, Mr B had a longstanding mental illness and was strongly opposed to having an amputation, which was necessary to save his life. The court found that B had expressed his views clearly and consistently. The hospital's argument that less weight should be given to B's views, as they were linked to his lack of capacity, was rejected.

Where, as here, P lacks capacity so that a best interests decision has to be made, proper weight should be given to P's wishes and feelings. In some cases, the wishes, feelings, beliefs and values of a person with a mental illness could be so long standing that they were an inextricable part of the person that he was. The deputy or court should consider the weight to be given to P's views in all the circumstances. The amputation application was dismissed.

The case's message is clear: even if someone has strong views which seem contrary to their best interests, those views should still be carefully considered.

Making a decision

But what practicable steps should be taken and how far should the principle be extended?

Many professional deputies will encounter people with severe incapacity which hinders even the most basic of decisions and communication. Chapter three of the MCA's Code of Practice describes a number of ways to help engage P in the process, including ensuring appropriate methods of communication. For example, does P need pictures to assist them, or to speak to a carer, or a better time of day?

Where a major decision is needed, for example, on buying a new home for a severely incapacitated individual, it may be proposed to gauge P's reaction by taking him to view a potential new house. Where P has no ability to coherently communicate, how can his reaction be properly assessed?

Reactions may be hard to attribute to any particular cause. A reaction at the property, whether good or bad, could result from a rare trip outside, being moved from usual surroundings or of being at that property. In some cases, it may be impossible to tell.

Each case needs assessing on its own facts and the above could be a reasonable step to attempt to engage P in such a major decision. Care is needed to balance the need to include the individual in the process against disproportionate costs and disruption of their life, which may not be in their best interest. It is important the deputy documents the decision-making process, the steps taken to involve P fully in that, what was gauged about their views and the weight given to them.

A decision on an apparently small matter could be of huge importance
to P.

UN opinion

Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), says those with disabilities should '…enjoy legal capacity on an equal basis with others in all aspects of life' and shall be provided with access '…to the support they may require in exercising their legal capacity.'

A Ministry of Justice report, Achieving CRPD Compliance, found the MCA was not fully compliant and the best interests decision-making framework required amendment. CRPD requires that any substituted decision-making regimes be abolished and replaced with supported decision making.

The best interests test may require some adjustment to ensure that P is fully supported to make decisions as far as practicable, with full weight given to their views and wishes. 

Margaret Windram is an associate at Thomas Eggar

She writes the regular in-practice article on wealth structuring for Private Client Adviser