Care home briefing 121 – Impact of Mental Capacity Act on public law
The Court has recently had to consider the extent to which the consideration of best interests under the Mental Capacity Act impacts on issues of public law.
The local authority re-organised the arrangements for the care of an elderly lady who suffered from physical and mental problems that meant that she was in need of care. The re-organisation was challenged by way of judicial review alleging a breach of Article 8 of the Human Rights Act, a breach of an earlier litigation Compromise Agreement, and in particular, an allegation that the local authority had acted unlawfully by failing to ensure that the care to be provided to her both met her assessed needs and took into account her best interests.
The claim failed but the Court had to consider the specific allegation that the local authority had failed to act in the Claimant’s best interests contrary to Section 4 of the Mental Capacity Act. It was contended on her behalf that the duties imposed upon the local authority by virtue of the National Assistance Act and the Mental Capacity Act, meant that the authority had acted unlawfully by failing to take account of the Claimant’s best interests.
The local authority denied that they had disregarded the Claimant’s best interests but asserted that they were not in any event the relevant yard stick for decisions.
The Claimant’s case was based mainly on an allegation that the local authority should have regard to guidance  which referred to the principles of the Mental Capacity Act including therefore the need to act in the Claimant’s best interests.
The Court rejected the Claimant’s assertion that the local authority had failed to act lawfully. The Court held that there would have been a breach of duty if the local authority had treated the Claimant’s best interests as an irrelevance, but the mere fact that she was incapacitated did not import a test of “what is in her best interests” as the yard stick by which all care decisions were to be made. Although the Mental Capacity Act would come into play in circumstances were a person was unable to make decisions themselves, this was not a situation where the consent of the individual was required. The local authority had to have due regard to her welfare and could rationally approach the decision on that basis.
The Court therefore held that that this was not a best interests decision but rather a public law decision.
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 R (Chatting) v Veridian Housing (1) London Borough of Wandsworth (2)  EWHC 3595 (admin)
 Because of the operation of Section 7(1) Local Authority Social Services Act 1970
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