Last week, the NHF published its final version of its new Code of Governance and made some important changes from the previous draft that will impact on those housing associations looking to adopt it.
You would hope that anyone looking after the financial affairs of a friend or relative, or indeed, making any decision on behalf of another, would be motivated to make a decision that was in the individual's "best interests".
Before the MCA
Before the MCA, however, “best interests” had never been formally codified, and the concept was not routinely referred to in legal decisions.
There had always been limited situations where one person might make decisions on behalf of another adult:
- The court might make an order, appointing a third party as “receiver”, to look after the financial affairs of someone who has lost capacity to do so themselves.
- The Enduring Power of Attorney (“EPA”) regime enabled an attorney to make decisions on behalf of the donor, which the donor could not make for themselves.
However, neither the court order nor the EPA required the proxy to act in the “best interests” of the person or gave guidance on how they might go about their decision-making.
Post MCA implementation
The MCA came into force on 1 October 2007; one of its five key underlying principles states:
Principle 4: Best interests
Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
Principle 4 of the MCA sets out how you determine “best interests”, which includes a consideration of the person’s “past and present wishes and feelings” and “beliefs and values that would be likely to influence his decision if he had capacity”. However, it is also necessary to consult others and to take on board all relevant considerations.
So how much weight is to be given to those wishes and feelings when deciding what is in a person’s best interests? There has been a tendency by the courts to attribute greater significance, the closer the person is to having capacity to make the decision for themselves. Another interesting twist has been the inclusion of “how a person will be remembered after their death” or “being remembered for doing the right thing” as a best interests consideration when the court has decided on the content of a will for a person lacking testamentary capacity.
The end game is not to identify what the person necessarily would do if they could make the decision themselves, but what decision is in their best interests. We are in the realms of “substituted” decision-making.
The courts have also had to grapple with a number of ethical and moral issues and the changing mores of society when considering best interests. One aspect of this has been the impact of the financial crisis and reduced local authority social care budgets. Best interests, in these straitened circumstances, has to be interpreted in the light of the limited (affordable) options, rather than an exercise to truly identify what will be best for the person.
Ten years on the issue of best interests is still very live.
At the end of August 2017, the UN Committee on the Rights of Persons with Disabilities (“CRPD”) reported to the UK Government on a number of concerns, including their view that our legislation does not promote equal recognition under the law for people with disabilities. (The UK ratified the CRPD in 2009).
One of the CRPD recommendations is that the UK:
“in close consultation with organisations of persons with disabilities, including those representing persons from black and minority ethnic groups…abolish all forms of substituted decision-making concerning all spheres and areas of life by reviewing and adopting new legislation in line with the Convention to initiate new policies in both mental capacity and mental health laws. It further urges the State party to step up efforts to foster research, data and good practices of, and speed up the development of supported decision-making regimes.”
Essentially, the recommendation is that we tear up the MCA and start again. Any new legislative regime should be based on “supported decision-making” with greater emphasis on the wishes and preferences of the person, rather than what is perceived as a paternalistic “best-interests” model.
With the Government focused on the significant quantity of new legislation required to support Brexit, together with Theresa May’s pledge to review the mental health legislation, it is highly unlikely that there will be any appetite to review the MCA any time soon.
However, the courts do already seem to be heading closer to the idea of supported decision-making, giving more and more prominence in a best-interests balancing exercise to the person’s own views.
The judgment delivered last month in B v D  EWCOP 15, considered whether it was in the best interests of D, a former soldier who sustained a serious brain injury at the hands of another soldier, to travel to Belgrade for experimental stem-cell treatment. Although the Ministry of Defence and the Official Solicitor opposed the plan, Baker J noted, “I am satisfied that he wants the treatment and that he wants it very much”. D’s strength of feeling was a key factor in a finely balanced “best interests” decision, which resulted in an order approving the plans.
What is unlikely to change going forward is the wisdom of ensuring that you let others know your thoughts and wishes, on how you would want your affairs or your health to be managed should you lose capacity in the future.
At Anthony Collins Solicitors, we can help with that planning.
For further information about making a lasting power of attorney or advance decision, please contact Alex Elphinston.
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