What to do if you disagree with a decision that health or social services want to make about the person you care for
This might happen if you cannot agree about whether the person you care for does or does not lack mental capacity, or if you disagree with the professional's opinion about what is in the best interests of the person.
For example, you might think that the person you care for cannot make a decision to accept a direct payment, but social services thinks they can make that decision and therefore should have direct payments. Another example is where a doctor thinks it is in the best interests of the person you care for to have an operation, but you disagree.
The first step is to try and sort out the disagreement informally, by negotiating with the professionals and explaining your point of view. If you still cannot reach agreement, there are two things you can do.
You can make a complaint, using the local authority or health complaints procedure. This is quite a straightforward process and often helps to sort out problems.
There should be a leaflet produced locally telling you how to do this. If you don’t feel confident about doing this, you can ask for advice and/or help from an organisation that provides advocacy services.
Complaints can take time so if you are worried that the person you care for is being put in danger you should consider contacting the local safeguarding team. You will be able to get in touch with the team through the local authority social services/adult social care in your area.
You can apply to the Court of Protection. The Court of Protection is set up especially for cases involving people who may or who do lack the capacity to make particular decisions. The judges are specialists in mental capacity issues. As well as dealing with financial deputies, the Court of Protection has wide powers to do things like:
- Decide whether a person has capacity to make a particular decision for themselves.
- Make best interests decisions on either financial or welfare matters affecting people who lack capacity to make them.
- appoint deputies to make welfare decisions for people lacking capacity to make those decisions, for instance where there is a serious disagreement between the family and the professionals.
- Decide whether a power of attorney is valid, and remove deputies or attorneys who are not carrying out their duties or not acting in the best interests of the person.
- If you are thinking of applying to the Court of Protection, you do not have to have a solicitor, but it will be helpful to get legal advice from someone who understands how the Court of Protection works. For some applications to the Court of Protection legal aid is not
means-tested, but it is for most.
- Where there is a dispute that goes to the Court of Protection, the Official Solicitor will usually be the ‘litigation friend’ of the person who lacks capacity. This is the main role of the Official Solicitor, who is independent of both the professionals and family members involved in any case, and concentrates on giving a voice to the person lacking capacity.