Information page about how to get legal advice and/or a solicitor on behalf of a relative with a learning disability, and checking how you can fund legal advice.
- Are you unsure whether your adult relative can make decisions for themselves?
- Do you want to know what rights you and they have to make decisions?
- Are you concerned that professionals are making decisions for your adult relative without consulting you?
All professionals, including those from the Social Services or Local Authority and the NHS must consult with family members if an adult lacks mental capacity to make a particular decision themselves. The law is clear on this – family members have a right to be consulted. Family members who need to be consulted can include parents, siblings, grandparents or anyone with an interest in the person.
Parent and carers’ rights in decision making
If your relative is under the age of 16 years and you have parental responsibility, you can make decisions about your relative’s health or welfare including decisions about medical operations or where they live. Professionals will have to consult you regarding a course of action unless it is an emergency. For more information on consent to treatment for children and young people see NHS Choices.
If your relative is over the age of 16 and does not have capacity to make a particular decision, the law (Mental Capacity Act 2005) says that, a decision must be made in the person’s ‘best interests’. Your relative should be supported to input to the decision as much as possible. An advocate can be used to help your relative express their wishes. You must be asked what you believe would be in your relative’s best interests and about what they might feel about the decision themselves. Professionals have a legal duty to consult you as a family carer but do not have to follow your views if they believe your views are not in the best interests of your relative.
Applying for a Deputyship Order to the Court of Protection to become a Deputy can help make sure that your views are always listened to if granted the order.
Support to make decisions
If your relative has capacity to make a decision but requires extra support to do so, they should be given support such as giving them extra time to process the information, and giving information in a format they can understand, such as sign language or easy read.
Steps to ensure you are involved
If you are worried that professionals are going to make decisions about your relative without consulting you, or that they already have done, raise your concerns with the professional involved in your relative’s care using the template letters below. The template letter resource was produced by the Challenging Behaviour Foundation in partnership with Mencap, Ambitious about Autism and Irwin Mitchell Solicitors. The letters asks the decision maker to consult you and your relative in the decision making process and clearly set out the legal requirements to involve you both.
If the professional fails to consult you following attempts to communicate with them about your worries, you may need to challenge the decision by making a formal complaint or taking the matter to the Court of Protection. It is advised that you seek legal help if you are to take your case to the Court and consider the expense of the court process and solicitor fees.
A guide to the meaning of words
Best interests – is a particular decision made or act done on behalf of an adult who lacks capacity
Competent – sufficient understanding and intelligence to understand the decision being considered
Court of Protection – UK law Court responsible for making decisions on issues which involve people without capacity
Deputy – a person appointed by the Court of Protection to make specified decisions on behalf of a person who lacks mental capacity to make certain decisions
Deputyship Order – power granting another person to make decisions on behalf of someone who usually lacks capacity to make decisions on their own.
Mental Capacity – is the ability to make a particular decision at a given time
Mental Capacity Act 2005 – UK government law which provides information on how decisions are made on behalf of someone without mental capacity
Parental responsibility – refers to powers, rights, duties, responsibilities and authority a parent has over their child
Further information about the Mental Capacity Act
Hft produced a Mental Capacity Act guide for families and they also have useful videos on Mental Capacity, available here: The Mental Capacity Act 2005 (MCA)
Mencap produced a Mental Capacity Act resource pack for families, available here.
Cerebra produced a guide for families on decision-making, confidentiality and sharing information, available here: Decision Making, Confidentiality and Sharing Information