All too often, those acting on behalf of ‘P’ (a Protected Person), in making decisions within their best interests, forget the importance of the specific individual of whom we blanket refer to a ‘P’.
We must not assume that P is unable to make all decisions at all times. In the same way that it can be easily assumed that adults have an ability to make better decisions for a child, it is useful to consider Section 1 of Children Act 1989, which requires a consideration of the individual child’s own ‘wishes and feelings’ within the decision making process.
Whilst the above example is not intended to liken those covered by the Mental Health Capacity Act 2005 to children, the comparative factor which underpins both legal spheres is ‘capacity’.
With a Deputyship Order in place, it can be easier to presume P lacks decision-making capacity, and make decisions on behalf of P without taking their views into consideration. In the same way we would not assume that P cannot decide whether they would prefer an apple, or a banana, applying the same approach, we should not assume that P is able to contribute their views on the care afforded to them.
As a deputy, you must consider the person’s mental capacity every time a decision needs to be made. This is important as the person’s mental capacity can change. They may be able to make a certain decision at one time but not at another.
This can be particularly important when considering those with dementia. Dementia is a wide ranging illness and effects each individual differently. I have met individuals who are able to communicate effectively, all the way to those who have become non-verbal. This is because dementia is a progressive illness and can change somewhat dramatically over a short period. It is therefore, crucial that we remind ourselves of the following;
When you are making decisions on behalf of the person, you should still involve them as much as possible. If you can, explain to the person what is happening and listen to what they say. - The Alzheimer’s Society
For any queries or support relating to the Mental Capacity Act 2005, Deputyships or a Lasting Power of Attorney, please contact our Court of Protection Team on 0344 3260049 or email COPHalifax@ramsdens.co.uk