This assessment must be carried out by a best interests assessor, who must be clear about the legal standing, and authority, of lasting powers of attorney, court-appointed deputies and Advance Decisions to Refuse Treatment. These matters are covered in the MCA code of practice, (60 Chapters 7, 8 and 9). A best interests assessor who finds that there is a lasting power of attorney in place, if there is no relevant refusal, must be aware that, if the relevant person lacks capacity to choose their own representative, the attorney may select the relevant person’s representative and may if they wish select themselves.
What makes a good no refusals assessment
The relevant person meets the no refusals requirement unless there is a refusal within the meaning of Schedule A1 to the Mental Capacity Act 2005 (61 paragraph 19 or 20).
19(1) There is a refusal if these conditions are met:
- the relevant person has made an advance decision
- the advance decision is valid
- the advance decision is applicable to some or all of the relevant treatment.
20(1) There is a refusal if it would be in conflict with a valid decision of a done or deputy for the relevant person to be accommodated in the relevant hospital or care home for the purpose of receiving some or all of the relevant care or treatment:
- in circumstances which amount to deprivation of the person’s liberty, or
- at all.
Example from practice
Josef’s niece, Clara, has lasting power of attorney for health and welfare; Josef has lost capacity to consent to treatment. Josef is diagnosed as needing surgery on his foot, and the local hospital has applied for a standard authorisation in order to keep him in hospital against his will in order to operate on him. Clara informs the best interests assessor, who is carrying out the no refusals assessment, that Josef always chose to attend a specific different hospital, run by a religious organisation, for any surgical procedures: he recognises this hospital as a safe place and has been happy and compliant with treatment there since losing capacity. Clara therefore refuses her permission for him to be admitted to the local hospital, and requests Josef’s doctor to arrange a consultation with Josef’s preferred hospital.