Since the introduction of the Mental Capacity Act 2005 it has been possible to apply to the Court of Protection for a decision about a welfare issue or the appointment of a Welfare Deputy.
A Welfare Deputy is typically appointed to make decisions about housing, care and medical treatment that cannot be made by the person concerned.
Whilst most decisions of this kind can be made simply by reference to the best interests of the individual, some decisions are more complex and agreement cannot be reached about what is the right course of action. In these circumstances the Court of Protection can be involved to make a specific decision, or in some cases appoint a welfare deputy with broader decision making powers.
Cases in which the Court of Protection may make a welfare decision for a person who does not have the mental capacity to make the decision themselves will usually include serious medical treatment issues such as:
- the decision to withhold life sustaining treatment
- certain termination of pregnancy cases
- donation for the benefit of another person eg bone marrow
- treatment requiring a degree of force
- experimental or innovative treatments
- cases where an ethical dilemma is faced.
The Court of Protection may also make an order in cases where there is genuine disagreement about where an individual should live, or other welfare matters. In these cases all other attempts to resolve the dispute must have been tried before the Court of Protection will intervene.
These are very new areas of law which are developing rapidly. More cases are reported month by month which guide how we can work within the framework created by the Act.