The case of Alfie Evans, the seriously ill toddler who, prior to his death was at the centre of a legal dispute between his parents & Alder Hey hospital has understandably attracted the attention of the national media. There has been an outcry of disbelief and frustration from the public that the parents’ wishes haven’t been upheld. The initial successful application from the hospital was that it was not ‘in his best interests’ to continue to receive life support. The court was asked to decide what was best for Alfie because there was a disagreement between the doctors and the parents.

I don’t intend to go into the legal issues or the ethics of that case, there are much better legal brains than mine who have written on the subject, but it has made me think about the parallels with the Court of Protection. 

As a solicitor specialising in health and welfare disputes concerning adults who lack capacity to decide an issue for themselves, the term ‘best interests’ is a concept I am used to. The principles of the Mental Capacity Act 2005 state that a decision made on behalf of a person who lacks capacity must be made in their best interests. The Act goes on to provide a checklist of what should be considered when deciding ‘best interests’ but it does not define best interests or provide a fail-safe procedure for coming to a decision. There is no hierarchy of which factors should be considered more relevant than others; each case will depend on the individual and the particular facts of the case. 

This is often at the root of disagreements and why cases have to go to court. Often the differing opinions are between professionals (such as social workers or medics) and family, but I have been involved in cases where siblings disagree over what is in a parents’ best interests. It has to be right in these types of situation that the court should make the final decision, considering all available evidence and listening to the views of all those close to the patient. 

If you need advice on issues surrounding someone who lacks capacity please get in touch on 0800 8 60 62 65. We can assess to see if you qualify for legal aid. 

Helen Dandridge – Court of Protection Solicitor