Best Interests Meetings

16 Mar

Grown Up Son Consoling Senior Parent

Best Interests Meeting


These meetings need to take place when there is no Health and Welfare Lasting Power of Attorney in place, when the person under discussion has lost mental capacity to make decisions for themselves and there is a difference of opinion between the various parties involved.  Often the difference is between the family and the healthcare professionals looking after the person.


So who is involved?  What happens?  And how to they work?


The people involved are the person themselves, to the extent that they can participate, which may be not at all, but they may be very involved.  The person’s family, since it is usually the family that have the disagreement, but it may be that the disagreement emanates from the person themselves.  There is usually a chair of the meeting and someone to take minutes.  The other people there are those that are relevant to that person’s care.  So it might include a general nurse, a mental health nurse and doctor or consultant, a social worker or a physio.  It all depends on the needs of the individual.  There may also be an IMCA, who is an advocate for the person, they should have met and spoken with them prior to the best interests meeting and their role is to put forward that person’s view.


The purpose is to consider the options that are available and consider their advantages and disadvantages.  The chair of the meeting should also consider the Principles of the Mental Capacity Act 2005, which are:


  1. a) A person must be assumed to have capacity unless it is established that they do not have capacity.
  2. b) A person is not to be treated as unable to make a decision unless all practicable steps to help him make a decision have been taken without success.
  3. c) A person is not treated as unable to make a decision merely because it is an unwise decision.
  4. d) An act done or decision made under this Act for or on behalf of a person who lacks capacity must be done or made in his best interests.
  5. e) Before the act is done or decision is made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedoms of action.


The key ones for this purpose, since the lack of capacity will have been established is the principle around best interests and that the option should be the less restrictive.  It is not the least restrictive option, since the least restrictive would be to do nothing and that is not always an option!


The meeting will then look at each of the proposed options one by one and each party will get a chance to say their views about the advantages and disadvantages.  Then having discussed the first option, they move onto the next one and then the third, if there is one.  Once there has been a discussion of the advantages, it is hoped that an answer will emerge after discussion.


Although the options are discussed, sometimes they are discussed is to “go through the process”, as someone will bring up a disadvantage that is unsurmountable, so it is never a realistic option and should have been dismissed before it was ever proposed at the best interests meeting.


These meetings can take 1-2 hours and seem laborious and stressful for families, the discussions seem prolonged and the process cumbersome.


For any family member going through this, if you feel overwhelmed at the prospect, let me know, I can attend and support you, which will take away some of the stress of the situation.  You will still have a poorly relative, I can’t change that, but I can sort out some of the situation for you.

Being a carer

2 Mar

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Being a carer


Carers are amazing.  They have a tough job, living their own lives, doing the best that they can (it’s what we all try to do) and then on top of that they have the responsibility of supporting another human being.  The responsibility of trying to make their lives better and keeping them as safe and well as can be achieved.


They often do this will little or no thanks from the rest of the family and not always with thanks from the person that they care for.  Depending on the level of insight that the cared for person has, they may want to take unreasonable risks and feel themselves restricted, for which they are angry and resentful.  They may have side effects to their condition that mean that they self-harm or harm others.  This can be incredibly distressing for carers to watch and be involved with or the target of.  And they still do their caring role, even in the face of all that.  I’ve met many carers who tell me a story along the lines that other family members come into the situation infrequently, tell them how they are doing everything wrong and then leave without helping out.


Everyone who has a loved one that isn’t well gets stressed about the situation and we all have different ways of dealing with that stress.  Some people deal with the stress by avoidance, anger or blame and hence the family members come along and complain that things are not going well, what they are usually really concerned with is that things are not going well for their loved one, because they are ill.  But it doesn’t make it any easier to be a carer on the end of a family member’s rage!


It is not surprising that carers find caring a tough role.  If that person has only recently become unwell, they may be grieving for the loss of the person that they knew and grieving for the loss of their earlier life when they didn’t have a caring responsibility.


Carers should be acknowledged for the hard work that they do, in the UK each year they provide £11bn of unpaid care and 150,000 years of unpaid care each year!


Whenever I have talked to carers and told them that they are trying their best, so this is all they can do and therefore should be congratulated for their efforts, their faces blossom into a huge smile, they don’t hear it often enough!


I love supporting carers through the issues that they have caring for a loved one, they make a difference and I can make a difference to them with the issue/s that arise.  I am on their side and they are not alone.


My message to all carers is: Well done, you’re doing a good job, you deserve to be acknowledged for your efforts.

The Big Conversation – Dying Matters!

16 Feb

A coffin with a flower arrangement in a morgue



There are a number of different organisations that are involved in this subject of talking about dying.  We live in a death phobic society, we rarely see real dead bodies, just fake ones in movies.  When a neighbour dies, they are not laid out in the dining room for the neighbourhood to come and pay their respects or anything like that anymore!  We avoid using the word “death”, there are lots of other sayings: “fallen off their perch”, “gone to the other side”, “passed on” etc.


And yet, this is something that eventually we will all do, yet we don’t talk about it much.  Lots of families find this a very difficult and uncomfortable conversation, but often once that first barrier is broken, of starting the conversation, the whole thing becomes much easier.


It is entirely understandable that people want to focus on living and therefore want to talk about living, about the exciting things they want to do with their life, the place they want to go on holiday this year or just what’s for dinner!  But it is still worth having a conversation, perhaps once a year or every other year about what you want to happen as you are dying and after you have died.


What sort of end of life treatment do you want?  Who will make those end of life decisions if you can’t?  What do you want to happen if you have a 50% chance of survival?  But what about a 70% survival chance or a 10% chance.  And what does “survival” really mean?  What is it about your life and lifestyle that is important to you?


And once you have died, what sort of funeral do you want?  Who do you want to be there?  Do any of these decisions matter or do you want your family to make some or all these decisions?  Is your family going to hold a wake, should there be a theme?  How do you want to be remembered?


In legal terms, this also leads into the making of a Will, which I have blogged about before.


Your family will be sad that you have died (hopefully) and one of the important ways that they are comforted in their grieving process is to be able to fulfil your wishes.  They can only do that if they know what your wishes are.  And they will only know what your wishes are if you have had a #BigConversation with them!

Wills and succession for business owners

2 Feb

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Wills in relation to business owners


If you are a sole trader, partner or director in a business, think about what if something serious happened to you and you died, what would you like to happen in respect of your business?


Some of the issues are the same as if something happened, but you are still alive.  Will the business continue?  How will it continue?  Is it to be sold?  Does it need to be sold to particular people or can it be sold on the open market?  How will the value be maximised?


The next thing to do is look at your business agreement and see what, if anything it says about those circumstances, as there may already be a clause covering those circumstances.  If there isn’t a clause or if you don’t like what it says, the next thing to do is talk to your partners / directors and discuss changing the agreement, if that is possible.


Think about the dynamics of the people who are left behind, do they get on and will they work together to achieve the outcome that you want?  Families often row and after the death of a family member can be a time when small niggles become full blown knock down fights!


You can put a clause in your Will in relation to any business assets that you own.  Wills are for individuals and the financial assets that they own at the date of their death.  You will need to consider whether the clause in your Will is going to work in relation to your business agreement.  You should think very carefully about who you appoint as your Executor and can they delegate the running of your business or will they run it themselves.  Are you essential for the business, so without you it will collapse?  Whatever the situation is currently, do you want that situation to be in place if you were to die tomorrow, if not, then you should consider what changes need to take place to ensure that your business is in a robust condition.


After you have gone, you need to think about how those who survive you will manage, such as, does your spouse / partner need the income from the business?


One very important step to take is to have a conversation with your family about what you want to happen.  They will always be upset, but it can be very helpful in their grieving process to know that they are fulfilling your wishes, but if they don’t know what your wishes are, they cannot fulfil them!


Lasting Powers of Attorney for business owners

19 Jan

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LPAs for business owners


If you are a sole trader, partner or director in a business, think about what if something serious happened to you and you are still alive, what would you like to happen in respect of your business in those circumstances (other than a miracle cure of course!).


Will the business continue?  Do you need it to continue?  How will it continue?  Is it to be sold?  Does it need to be sold to particular people or can it be sold on the open market?  How will the value be maximised?


The next thing to do is look at your business agreement and see what, if anything it says about those circumstances, as there may already be a clause covering those circumstances.  If there isn’t a clause or if you don’t like what it says, the next thing to do is talk to your partners / directors and discuss changing the agreement, if that is possible.


You can create a Lasting Power of Attorney and restrict it entirely to your business interests, as you may wish to have different people manage your personal and business interests.  You will need to consider whether the LPA will work in relation to your business agreement.  If you are going to appoint an attorney, who will it be?  Are they capable of running your business?  Do you trust them?


If something happened to you, how would you live, where is your income coming from?  Is there payment in the agreement for your investment and/or labour in the business?


Separate to any business LPA you make, you should also make an LPA for your private financial matters and additionally one for health and welfare decisions, so that you can be cared for by your loved ones in any unforeseen circumstances.

The Life of a carer

5 Jan

Young physiotherapist teaching elder lady how to use a walker

The life of a carer


I have recently gone to a number of meetings to support carers or the cared for.  When facing a meeting or contact with either health or social care, individuals and carers in particular are already stressed.


I have heard a statistic from the Alzheimer’s Society that within a year of diagnosis of a dementia, 85% of carers are clinically depressed.  I’ve also heard that it is around 50% in the USA.  Statistics aside, carers are usually stressed and struggling.  They are struggling just to cope that their loved one is not well.  Dealing with that is enough!  Then add onto that another issue / problem and they can easily feel that they can no longer cope.  And these issues happen all the time, things will be fine for a while, and then the person gets ill or has a fall or has a financial issue.  Some of these issues can be resolved, but when someone gets ill, sometimes all the carer can do is hold their loved one’s hand and / or cry!  The life of a carer is tough!


I love this work, helping and supporting carers.  When I get involved in this kind of situation, I can support the carer to ensure that the latest issue that has arisen can be resolved and positively.  The carers love having someone on their side, I am not neutral in the situation.  And the carers have that sense that someone has empathy for them and also that they are not alone battling against whatever is happening.


Sadly, all too often, no-one can stop that person from being unwell and often they are deteriorating.  It isn’t great to watch a loved one slipping away over a period of months or years.  As sad as it is, it is not something that can be stopped, so my message is to be realistic about that.  Don’t aim to keep them alive, as eventually we all die.  And don’t aim to stop them from deteriorating, if they have a deteriorating condition, it will happen and you cannot stop it.  My message is that you can keep them happy and as safe as is achievable.  If you’ve done that, you’ve done a good job.


My message to all carers is: Well done, you’re doing a good job.  Thank you.

Deprivation of Liberty – Part 6

15 Dec

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DOLS – Part 6


Following the Cheshire West case in 2014, where the Supreme Court, which is the highest Court in England and Wales, decided that if someone who is cognitively impaired is “under continuous control and supervision”, then they were deprived of their liberty and therefore the deprivation should be authorised.  This implied that it would lead to a huge increase in the numbers of cases for authorisation by both the Local Authority, which should authorise cases in care homes and hospital and the Court of Protection, which should authorise deprivations elsewhere.


The final case that I will look at is Re X (Court of Protection).  The president of the Court of Protection wanted to have brought before him a number of different cases, that had similar issues, so that he could answer the questions in one “supercase”!  By the time the Re X case came before the President, even he did not how many individual cases were involved!


The president created a list of 25 questions, which he hoped he would answer and in doing so would form the basis for a streamlined process of applications to the Court of Protection.


The case was referred to the Court of Appeal.  The Court had concerns about this list of 25 questions and whether the president had the jurisdiction to hear all of these various cases and answer his list of questions.  In the end the Court decided that he did not have jurisdiction.


One of the questions that the Court of Protection asked was whether the person being deprived of their liberty should be joined as a party to the case, which means that they would have the right to be heard by the Court, either directly or via some carer / advocate / family member etc.  The Court would always join the person where the matter was controversial, as in these circumstances, the Court would always want to hear from the person, but what about in cases that were not controversial or contested?  The Court of Protection, in looking at a streamlined process decided that they didn’t have to be joined, which meant that they still might be, but didn’t have to be.  The Court of Appeal overruled this and said that they should always be joined, because if someone is being deprived of their liberty, they should be involved.  Being deprived of their liberty is what happens when people are convicted of a criminal offence and sent to prison, so to deprive someone of their liberty when they are cognitively impaired is a huge issue and that person should be involved in the process and hence joined as a party.


What has come out of this is a new Court of Protection process, with a new Practise Direction.


There have been lots of cases following Cheshire West, and many have found that a person is not deprived of their liberty, but as the Supreme Court is the highest Court, none of these cases have overruled Cheshire West, which therefore stands as case law.


The Law Commission is looking at the whole issue of deprivation of liberty and has said that it is “deeply flawed”!  One of the ways in which it is intended to reform it is to change the name to “Protective Care”, which sounds so much more appealing than Deprivation of Liberty!


During the process of reform, the Law Commission undertook a consultation process, which is now closed and a final report and draft bill are due to be released in December 2016.