Whose call?

Alex Ruck Keene analyses where decision-making responsibilities lie in relation to powers of attorney, care homes, best interests and deprivations of liberty.

I have been asked by a good Best Interests Assessor (you know who you are!) to write something about powers of attorney, care homes and best interests. Because I am nice like that, here are some thoughts, but with the usual caveat that none of this represents legal advice.

A confusion that regularly arises in the context of self-funders is as to the respective roles of property and affairs attorney(s) and local authority social workers who may have involved in consideration of the care arrangements for the person. In particular, whose ‘call’ is it that the person should move into a care home?

This is an aspect of a wider confusion that regularly arises (and, indeed, is almost structurally designed into the Mental Capacity Act in relation to who the decision-maker is in relation to informal decisions, i.e. those being taken where the person delivering care and treatment is going to rely upon the provisions of the defence in section 5 MCA. We discussed this confusion, how to identify the decision-maker, and what is a best interests decision, in our best interests guidance note we published in the autumn of 2015.

However, in relation to attorneys, then the answer is – for once – clear. Where a person has granted a power of attorney in relation to property and affairs (or where the Court of Protection has appointed a property and affairs deputy), then it is in the first instance for the attorney or deputy to decide where to commission the care the person needs, on the basis that they are the proxy for the person. That proxy will have to make decisions on a best interests basis which will, inevitably, include consideration of the impact of the move upon the person’s welfare, for instance if it is going to mean they cannot see their friends as frequently or they are not going to be able to go to the same church.

The relevant local authority social workers can advise and assist at the behest of the attorney/deputy, but it is not for them to make the decision as to where the person should live if the local authority is not funding the accommodation. If the local authority social workers genuinely consider that the attorney/deputy is taking decisions that are not in the best interests of the person, then this a matter that needs to be addressed by way of an application to the Court of Protection which can – as a last resort – direct the removal of the attorney or the deputy.

It should be noted that, by the same token, a health and welfare attorney (or deputy) cannot decide on behalf of a self-funding individual lacking the material capacity where they should live, although by definition the views of the attorney/deputy as to where their interests would best be served should carry very great weight with any property and affairs attorney (or deputy) appointed if the same individual – or individuals – is not discharging both health and welfare and property and affairs functions.

In relation to deprivation of liberty, an attorney (or deputy) has a veto power under DOLS (see paragraph 20 of Schedule A1). Conversely, it is important to note that it is not possible for a donor to ‘opt out’ of DOLS by providing that an attorney can consent on their behalf to the deprivation of liberty, and any attempt to include such a provision in the instrument is likely to end up being struck out upon the Public Guardian’s application to the Court of Protection (see the unreported decision of Senior Judge Lush in Re Stewart). So even if the attorney considers that the arrangements are in the person’s best interests, and what the person would have wished, this does not obviate the need for the DOLS authorisation procedure to be invoked. The courts have not decided whether the ‘substituted consent’ of an attorney would also obviate the need for an application to the Court of Protection in the context of a deprivation of liberty taking place outside a care home or hospital, but the decision in Birmingham City Council v D would suggest that a court would approach such a proposition with considerable caution.

It should also be emphasised that even if local authorities are not the decision-maker when it comes to the placement decisions made by property and affairs attorneys in relation to ‘self-funders,’ this does not mean that the local authorities do not have responsibilities in consequence of those decisions. In particular, and as emphasised by Baker J in AJ, local authorities have obligations to secure the article 5 rights of those deprived of their liberty in care homes, no matter how they came to be placed there. This will include taking the appropriate steps to appoint (or confirm the appointment) of a suitable Relevant Person’s Representative and (where necessary) an Independent Mental Capacity Advocate, and, as a last resort, bringing cases before the Court of Protection where the machinery provided for under DOLS is not working to ensure that those who wish to challenge their deprivation of liberty are enabled to do so.

Alex Ruck Keene is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.