LPA and restrictions on contact

Law and practice Mental Capacity Act
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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?

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Hello, I am interested if you ever got any further information around this? We have this very issue at the moment where the LPA is restricting contact with family members. We can see no current risk to the visits however, the LPA is adamant the doner did not wish to see the family members. The family are saying the LPA is incorrect and they are controlling.
Even in the MCA code of practice it states an LPA can decide who the doner has contact with.
I am looking into how this decision is managed when the doner is in a care facility. It presents all sorts of problems with restricting the visits under Regulation 9A. How are the staff to manage the family when they attempt to visit.
If you found out anything more please do let me know.

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Hi Katie, the straightforward answer is I didn’t get any further I am afraid. However, the LP15: How to be a health and welfare attorney (web version) - GOV.UK (www.gov.uk) does state “OPG can also advise on resolving disputes between attorneys and friends and family members of the donor.” So, it might be worth sharing this guidance with both the attorney and family of the Donor, stating that both parties could seek guidance from the OPG in relation to the issue… I suppose the difficulty for frontline practitioners in this situation is whilst the family are stating the attorney is ‘incorrect and they are controlling’, the attorney could also argue they are taking into account statements made by the donor before they lacked capacity in relation to this matter… Sorry that my response has not really been of any assistance, it would be good if you could provide an update on what happens next.

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