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Mental Capacity Act practice guidance

Part 11

Resolving disputes

[Code of Practice chapter 15]

There is no formal appeals process under MCA. The MCA provides open, accessible decision-making and everyone who uses MCA must be open to challenge. At times this can result in disputes.

The decision-maker:

  • has the authority to make a decision about someone’s capacity and their best interests
  • must follow the two step process to assess capacity
  • must follow the best interests checklist to decide on someone’s best interests – this includes consulting other people such as professionals, family and friends and an IMCA if appropriate.

If the decision-maker follows the correct steps they have the authority to make the decision. (Part 6: How to assess capacity) (Part 7: Being a decision-maker) (Part 8: Best interests decisions)

Other professionals may disagree with a decision-maker’s conclusion. It will be appropriate to discuss this openly, perhaps in a best interests meeting, to try to resolve any dispute, but the decision-maker has the final authority to make the decision. Other professionals don’t have to agree with the decision-maker’s conclusions, but they do need to understand and abide by the decision. (Part 9: Best interests meetings)

Family, friends or an IMCA may disagree with professional decisions, or there may be disputes in someone’s circle of family and friends. It’s best to try and solve disputes through communication. Involving people in the decision-making process may reassure them that their views are heard and that a proper legal process is being followed. A best interests meeting may offer a more formal way of involving family or friends in a decision and enable them to accept the decision. (Part 9: Best interests meetings)

If the decision-maker represents an organisation providing care – such as DCC or Torbay Council, the NHS or a private provider – they need to demonstrate that the care provided by the organisation is better for the person than anything proposed by their family.

It may be possible to use mediation to enable people to consider a difficult decision. Contact the Family Mediation Helpline or the National Mediation Helpline or other local services. (Contact details)

Making a complaint

Anyone can make a formal complaint about any services received. Anyone who may lack capacity, or their family or friends, should be offered whatever support they need to make a formal complaint. (Contact details)

Court of Protection

If it is not possible to resolve a dispute, the Court of Protection can make a decision. A public authority should seek a Court determination if there is sustained dispute about a decision, although anyone can apply to the Court of Protection. Application to the Court of Protection should be a last resort. Make sure that you have sought the advice of the local Safeguarding Adults Team or MCA Lead and have legal advice. (Contact details) (Part 23: The Court of Protection)