Health and welfare decisions and the Court of Protection
The Court of Protection is the legal body which decides cases in the best interests of people who lack the mental capacity to make their own decisions.
The work of the Court of Protection broadly divides into two areas Property & Affairs and Health & Welfare which cover issues including:
- a person’s medical treatment;
- where they should live;
- what type of contact they should have with their family or others.
Miles & Partners is one of the few firms nationwide specialising in representing vulnerable people, their families and carers. Our experienced lawyers are accredited members of the Law Society’s Court of Protection (Welfare) Accreditation Scheme and the Law Society’s Mental Health Tribunal scheme. In Court of Protection cases they are often instructed by the Official Solicitor.
The Court of Protection team is recognised in the 2021 Legal 500, as ‘an expert team with a well-earned reputation in the field. Well organised, client focused and a pleasure to work with.’
In the Chambers UK 2021 Guide, the department was ranked in Band 2 and recognised as ‘a committed team who truly wish to help the most vulnerable in society.’ It was also noted that ‘they are very conscientious and thorough in their approach.’
We can advise on a range of issues relating to a vulnerable person’s health and welfare which might include
- best interest’s decisions relating to residence, care and contact;
- Deprivation of Liberty Safeguards (DOLS) and challenges to authorisations;
- considering a person’s capacity to consent to sexual relations and marriage;
- considering a person’s capacity to consent to sterilisation; or
- cases relating to urgent medical treatment.
We can represent the person who lacks capacity to conduct the proceedings either direct as their Approved Legal Representative or through a litigation friend. An Approved Legal Representative (ALR) is a lawyer who has been approved by the Law Society to represent the person who lacks capacity. Alternatively anyone can act as a litigation friend as long as the litigation friend can conduct the court proceedings “competently and fairly” and has no interests adverse to that of the person they are litigation friend for. As such, a litigation friend is usually a family member or close friend. If there is no one who can be the litigation friend the Official Solicitor (a solicitor from the Ministry of Justice) will do so. It is up to litigation friends whether they act in person or whether they instruct solicitors.
Our experience in community care means we are able to advise clients involved in mental capacity matters on the lawfulness of the services in place to support them or their relatives.
Funding for legal advice or representation
Miles & Partners has a Mental Health contract awarded by the Legal Aid Agency. Where the case is a challenge to the Deprivation of Liberty Safeguards, legal aid is available to the person being deprived of their liberty in a care home or hospital without an assessment of income and assets. In such circumstances non means tested legal aid is also available to their Relevant Person’s Representative. For all other health and welfare matters legal aid may be available if the assessment of income and assets is passed.
Once we understand your circumstances, we will advise what funding might be available and discuss which payment options might work best for you if legal aid is not possible.
For legal advice
If you or someone you care for requires advice or assistance in any of these matters, please contact us and ask to speak to a member of our Mental Health & Capacity team.