When to use this Guidance
You should use this guidance when:
- You (or another suitably skilled person) have assessed a person (who is aged 16 or over) as unable to make the decision for themselves (through a mental capacity assessment); and
- The decision to be made cannot wait; and
- The decision to be made is a decision that you are authorised to make; and
- You have confirmed that there is no Deputy or Attorney authorised to make the decision; or
- In the cases of serious medical treatment, you have confirmed there is no Advanced Decision to Refuse Treatment.
The role of the Decision Maker will normally be the responsibility of the following people, where they exist:
- A Lasting Power of Attorney with the power to make the decision; or
- A Deputy appointed by the Court of Protection who has been authorised to make decisions about the matter to be decided.
If the decision relates to serious medical treatment and the person who lacks capacity has prepared an Advance Decision to Refuse Treatment you:
- Cannot make a decision using the Best Interests principle; and
- Must respect the decision that has previously been made by the person as set out in the ADRT; unless
- It has been withdrawn by the person; or
- The person has subsequently appointed an Attorney to make the decision (thus overruling the ADRT); or
- The person has not acted in a way that is consistent with the ADRT
Click here for more information about ADRT's and how to use them.
A range of decisions can be made by carer's and professional without the need to approach the Court. These include:
- Everyday decisions, such as what to wear, what to eat or what to buy from the shop; and
- Major decisions, such as where to live and whether to undergo medical treatment.
There are some decisions that can never be made by a carer or professional, and must always be made by a Court. These are known as exclusions, and before proceeding you must be satisfied that the decision to be made is not an excluded decision.
Click here to access guidance about decisions that are excluded.
You can seek permission to request the Court of Protection decides what is in the person's Best Interests when:
- You are unable to make a decision; or
- The decision is particularly complex; or
- The decision that is made is contested by a member of the person's family.
You should speak to your line manager in the first instance if you feel there is a need to apply to the Court.
There are some decisions that can never be made by a carer or professional, and must always be made by a Court. These are known as exclusions, and before proceeding you must be satisfied that the decision to be made is not an excluded decision.
Exclusions fall into 3 primary categories as follows:
- Decisions concerning family relationships;
- Mental Health Act matters; and
- Voting rights.
Click here to access guidance about the specific decisions that are excluded within each category.
You can seek permission to request the Court of Protection decides what is in the person's Best Interests when:
- You are unable to make a decision; or
- The decision is particularly complex; or
- The decision that is made is contested by a member of the person's family.
You should speak to your line manager in the first instance if you feel there is a need to apply to the Court.
Despite the existence of this guidance you are legally required to have regard to the most recent Code of Practice.
If you have to go to Court or Tribunal for any criminal or civil proceedings and it appears that you have not regarded, or have failed to comply with the code this will be taken into account in any subsequent determination that is made.
Click here to access the Code of Practice for the Mental Capacity Act 2005.
Last Updated: February 5, 2024
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