Managing Disagreement

Any of the following decisions that you make may be challenged:

1. The outcome of a Mental Capacity Assessment;
2. A Best Interests decision; or
3. How a Best Interests decision has been/is being implemented.

The following persons may raise a challenge:

1. The person whose mental capacity has been assessed;
2. The representative of a person who lacks capacity (including any IMCA);
3. Family members or friends concerned with the welfare of the person;
4. Carers (paid or unpaid);
5. Health professionals;
6. Social care professionals;
7. A legal representative of the person;
8. The Court of Protection.

Disagreements can be:

1. Informal; or
2. Formal.

Informal disagreements include:

1. Disagreement communicated verbally, or in writing; and
2. Confirmation of an intention to make a formal complaint if disagreement cannot be resolved.

Formal disagreements include:

1. Complaints raised through the formal complaints procedures of the Local Authority or ICB;
2. Complaints made to the Local Government Ombudsmen; and
3. Complains made to the Health Service Ombudsmen.

As soon as you are aware that a disagreement exists the Code of Practice expects you to take steps to resolve it at the earliest opportunity and, wherever possible avoid the need to take matters to the Court for a resolution.

Sometimes disagreement can be anticipated during the process of decision making. When this is apparent (or likely) you should:

1. Take steps to try and resolve any disagreement as part of the process of making the decision; unless
2. The decision to be made cannot be delayed in order for such steps to be taken.

In order to proactively try to resolve disagreement you should ensure that you have:

1. Provided all of the information about the decision in an accessible way;
2. Listened to the views of everyone involved;
3. Acknowledged any disagreement between views;
4. Considered the best decision making forum (e.g. a multi disciplinary meeting or virtual decision making);
5. Considered carefully the weight to give different views; and
6. Communicated a clear and objective rationale for the decision.

If a proactive approach to resolve the disagreement during decision making is not successful you should:

1. Seek the support of your line manager as required; and
2. Make the decision that needs to be made; and
3. Make the person aware of their right to make a formal complaint.

Disagreements that have been raised after the decision is made, but outside of formal complaints channels can often be resolved through:

1. Communicating effectively; and
2. Taking the time to listen; and
3. Acknowledging and addressing worries.

This can involve:

1. Reviewing your rationale for making the decision with a manager;
2. Explaining the rationale for any decision that you have made in a way that the person understands;
3. Explaining how you have taken their views (and the views of others) into account;
4. Inviting a manager or colleague to talk to the person;
5. Offering to get independent expert advice;
6. Using an advocate to support or represent the person;
7. Arranging a Best Interests case conference or other meeting;
8. Allowing time for the person to consider their position and the information provided.

If an informal approach to resolve the disagreement is not successful you should:

1. Seek the support of your line manager as required; and
2. Make the person aware of their right to make a formal complaint.

Depending on the nature of the decision and the dispute it may be appropriate to make an application to the Court of Protection to seek a final determination about mental capacity, or what is in the person's Best Interests.

An advocate can help settle a disagreement by:

1. Supporting the person to say what they want to say; or
2. By presenting the person's feelings to their family, carers or professionals; and
3. Ensuring that the person exercises their right to complain or challenge any decision made about them.

If an IMCA or other independent advocate is already involved you should consider the benefit of:

1. Involving them in resolving any informal dispute; or
2. Involving them in resolving any formal dispute; and
3. If an advocate is not yet involved you should consider the benefit in appointing one.

Formal complaints are those complaints made through the formal complaints procedures of a Local Authority or ICB. 

If a formal complaint has been made you (or whoever has been appointed to investigate the complaint) should follow processes set out in any local complaints procedure to try to resolve the dispute.

This will normally involve informal discussion between:

1. Yourself as the person making the decision;
2. The person whose capacity has been assessed;
3. Any carers; and
4. Any appropriate relatives.

If a formal approach to resolve the disagreement is not successful the person making the complaint should be advised of their right to make a formal complaint to the Local Government or Health Ombudsmen.

Depending on the nature of the decision and the dispute it may be appropriate to make an application to the Court of Protection to seek a final determination about mental capacity, or what is in the person's Best Interests.

If the dispute is bought to the Court of Protection to make a determination about capacity or Best Interests, the Court will:

1. Review that process that you used to reach the decision that is being challenged; and
2. Decide that the decision stands; or
3. Make a different determination about the person's mental capacity or Best Interests.

Sometimes you will be involved in, or aware of a decision that has been made by a Deputy or a Donee of a Lasting Power of Attorney.

Unless there is evidence that any of the following apply, you cannot challenge a decision made by a Deputy or Donee, even if you disagree with it:

1. The Deputy or Donee is no longer an appropriate person to act; or
2. An Lasting Power of Attorney being used has not been registered; or
3. The Deputy or Donee has not taken steps to assess the person's capacity to make the decision for themselves; or
4. The Deputy or Donee may not have the welfare of the person in mind;
5. The Deputy or Donee is not authorised to make the decision; or
6. The Best Interests principle has not been applied; or
7. The manner in which the decision being implements in not least restrictive.

If any of the above applies you must take steps to report concerns to the Office of the Public Guardian. The OPG is responsible for monitoring how Donees and Deputies make decisions, and it will investigate all complaints about the practice of registered Donees and Deputy's.

All Deputy's and Donees have a duty 'not to delegate'. This means they cannot delegate their decision making responsibilities to another person without the permission of the Court to do so.

If  a Deputy or Donee is declining to make a decision that they have responsibility for, or has asked another person to make the decision on their behalf you must take steps to:

1. Report this to the Office of the Public Guardian; and
2. In the case of a Deputy, apply to the Court of Protection to make a determination.