In 2014 Newcastle Safeguarding Adults Board published a case review arising from the death of an elderly man whose son was subsequently convicted of wilful neglect under the MCA 2005, which has only just hit the headlines. The man himself had a history of non-engagement with medical services, and was supported in this by his son. When concerns about the man’s capacity arose, the local authority made an application to the Court of Protection, but sadly the man died before any substantive progress was made with the application, which was strongly resisted by the man’s son. The case review concludes that an earlier application to the Court of Protection would have made a difference, and recommends improved MCA training and awareness. While that is no doubt to be supported, the case review contains the following paragraph, which the editors respectfully suggest contains the entirely incorrect assertion that it can never be in P’s best interests for an unwise decision to be taken:
It has been questioned whether a successful and/or quicker application to the Court of Protection would have made any difference to the safeguarding of Adult D, given his previous lack of engagement with services. In determining Adult D’s best interests the Court of Protection would have been required to consider his previous behaviour and his current wishes and feelings amongst a number of other factors; however these would not have significantly influenced the outcome as the Mental Capacity Act does not allow any decision-maker, including the Court, to make an unwise decision as being in the best interests of an incapacitated person. Given the unique circumstances of this case the factor of magnetic importance for the Court would have been ensuring Health and Adult Social Care were given access to Adult D in his own home for the purposes of assessment and care provision.
This extract from the case review highlights the tension between the MCA as a method of protection, and as a way of empowering people who lack capacity to make their own decisions but wish their preferences to be respected. The editors suggest that while written guidance as to managing obstructive family members may be useful, addressing the wider issue of the interface between the MCA and safeguarding responsibilities is something which may be more helpful.