I just came across this very interesting LGO decision – Hertfordshire County Council (21 006 495) [2022] MHLO 2 (LGSCO) – where the following comment is made in the report: ’ * Dr C said he spent a lot of time researching the law and had a meeting with a solicitor who specialised in elder abuse. He recommended that Dr C should obtain expert advice from a barrister. Dr C read the barrister’s book and found a statement that attorneys could make best interest decisions to restrict contact. He wrote to the barrister who confirmed this.’ (para 62, final bullet point).
I am not challenging this assertion I am just wondering whether there are ever any limits to this, and whether there are any situations where attorneys making decisions that significantly interfere with a donors Article 8 rights, (for example, stopping them seeing family, limiting/stopping their internet or social media use or stopping the person from engaging in sexual relations) would require additional scrutiny, especially if the donor is objecting to this interference?
By way of example, lets say the Attorney (both health and welfare and property and financial affairs) wants to restrict contact between the donor and one of the donors family members because of financial abuse, and the donor does lack the capacity in relation to this decision and the attorney is acting in the donors best interests by restricting this contact. My question is, if the Donor was making it very clear that they still wanted to have contact with said family member, but the attorney did not feel that this was in the donors best interests would there be any additional considerations for the attorney in this type of situation?
I suppose I also find this situation interesting as Attorney’s don’t have the authority to authorise arrangements that amount to a Deprivation of Liberty, but significant interference with a persons right to a family life would not be an issue.
Any thoughts, I am looking to improve my knowledge in this area? From looking at the Mental Capacity Act 2005 it doesn’t appear that there would be an issue, as long as the attorney had complied with the ‘provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests), and any conditions or restrictions specified in the instrument.’ (Section 9 (4)) Is that correct?