Navigating capacity challenges

The private client team at Russell-Cooke has strong expertise in capacity law, an offering that is further enhanced by the recent appointment of Vanessa Collins as legal director who has specialist expertise in Court of Protection matters including deputyship applications for personal welfare and/or property & financial affairs, in particular for individuals with disabilities and special educational needs (SEN) and LPAs. 

What sets Vanessa apart from many private client lawyers is her experience in the niche area of serious medical treatment matters (including withdrawal of treatment) in adults and children advising and representing families when best interest issues have arisen with Health Trusts. 

Decisions for adults who do not have the capacity to consent to medical treatment in England and Wales are governed by the Mental Capacity Act 2005 (MCA) and come with complexities. The MCA specifies that, any act done, or decision made, for a person who lacks capacity must be made in their best interest.

The MCA provides a legal framework in England and Wales for decision-making on behalf of people aged 16 or over who cannot make decisions for themselves. It applies to all decisions taken on behalf of people who lack capacity, whether permanently or temporarily. It is important to remember that capacity is decision-specific: it focuses on the specific decision that needs to be made at the time that decision is required. It is not a single, one-off event, but one that must be regularly assessed and continuously reviewed. 

The MCA does not define best interests. Instead, it sets out a process to be followed when making a decision. In most circumstances it will be clear where the individual’s best interests lie, and a decision as to care or treatment will not be challenging or time-consuming—but this is not always the case. Whether to provide analgesics for someone in pain is likely to be a straightforward question; a decision about whether to continue providing life-sustaining treatment is less so and understandably in its nature is fraught with difficulties.

A family of an adult who lacks capacity and is receiving life-sustaining treatment may disagree, for example, with the treating clinician’s views that it is in their loved one’s best interest to remove all treatment. Instead the family may believe it is in their best interest to continue treatment as they believe there is a prospect that they may recover. The conflict of views is often a challenging one to reconcile.

Vanessa has many years’ experience of advising families whom find themselves at odds with medical advice concerning their loved ones. She further has acted for families in various court cases when Health Trusts have issued best interest applications highlighted in the case of Pippa Knight. Pippa was a six-year-old girl who had been in a vegetative state at Evelina Children’s Hospital in London. Her mother instructed Vanessa to challenge a decision by doctors to withdraw life support treatment.
In the case of RY Vanessa was instructed by the family. The central issue in this case was whether it remained in the best interests of an 81-year-old man, RY, to receive deep suctioning via a tracheostomy which the court had previously consented to on his behalf.