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Managing Disagreement

1. A Decision you have made

Decisions that may be challenged

Any of the following decisions that you make may be challenged:

  1. The outcome of a Mental Capacity Assessment;
  2. A Best Interests decision; or
  3. How a Best Interests decision has been/is being implemented.

People who may raise a challenge

The following persons may raise a challenge:

  1. The person whose mental capacity has been assessed;
  2. The representative of a person who lacks capacity (including any IMCA);
  3. Family members or friends concerned with the welfare of the person;
  4. Carers (paid or unpaid);
  5. Health professionals;
  6. Social care professionals;
  7. A legal representative of the person;
  8. The Court of Protection.

How challenges can be raised

Disagreements can be:

  1. Informal; or
  2. Formal.

Informal disagreements include:

  1. Disagreement communicated verbally, or in writing; and
  2. Confirmation of an intention to make a formal complaint if disagreement cannot be resolved.

Formal disagreements include:

  1. Complaints raised through the formal complaints procedures of the Local Authority or CCG;
  2. Complaints made to the Local Government Ombudsmen; and
  3. Complains made to the Health Service Ombudsmen.

Responding to disagreement

As soon as you are aware that a disagreement exists the Code of Practice expects you to take steps to resolve it at the earliest opportunity and, wherever possible avoid the need to take matters to the Court for a resolution.

Resolving disagreement during the process of Decision Making

Sometimes disagreement can be anticipated during the process of decision making. When this is apparent (or likely) you should:

  1. Take steps to try and resolve any disagreement as part of the process of making the decision; unless
  2. The decision to be made cannot be delayed in order for such steps to be taken.
Need to Know

Decisions that cannot usually be delayed are those relating to:

  1. Urgent medical treatment to save life; or
  2. Urgent medical treatment to prevent serious harm.

In order to proactively try to resolve disagreement you should ensure that you have:

  1. Provided all of the information about the decision in an accessible way;
  2. Listened to the views of everyone involved;
  3. Acknowledged any disagreement between views;
  4. Considered the best decision making forum (e.g. a multi disciplinary meeting or virtual decision making);
  5. Considered carefully the weight to give different views; and
  6. Communicated a clear and objective rationale for the decision.

If a proactive approach to resolve the disagreement during decision making is not successful you should:

  1. Seek the support of your line manager as required; and
  2. Make the decision that needs to be made; and
  3. Make the person aware of their right to make a formal complaint.

Informal disagreements

Disagreements that have been raised after the decision is made, but outside of formal complaints channels can often be resolved through:

  1. Communicating effectively; and
  2. Taking the time to listen; and
  3. Acknowledging and addressing worries.

This can involve:

  1. Reviewing your rationale for making the decision with a manager;
  2. Explaining the rationale for any decision that you have made in a way that the person understands;
  3. Explaining how you have taken their views (and the views of others) into account;
  4. Inviting a manager or colleague to talk to the person;
  5. Offering to get independent expert advice;
  6. Using an advocate to support or represent the person;
  7. Arranging a Best Interests case conference or other meeting;
  8. Allowing time for the person to consider their position and the information provided.

If an informal approach to resolve the disagreement is not successful you should:

  1. Seek the support of your line manager as required; and
  2. Make the person aware of their right to make a formal complaint.

Depending on the nature of the decision and the dispute it may be appropriate to make an application to the Court of Protection to seek a final determination about mental capacity, or what is in the person's Best Interests.

Using an advocate

An advocate can help settle a disagreement by:

  1. Supporting the person to say what they want to say; or
  2. By presenting the person's feelings to their family, carers or professionals; and
  3. Ensuring that the person exercises their right to complain or challenge any decision made about them.

If an IMCA or other independent advocate is already involved you should consider the benefit of:

  1. Involving them in resolving any informal dispute; or
  2. Involving them in resolving any formal dispute; and
  3. If an advocate is not yet involved you should consider the benefit in appointing one.

Formal complaints about the decision

Formal complaints are those complaints made through the formal complaints procedures of a Local Authority or CCG. 

If a formal complaint has been made you (or whoever has been appointed to investigate the complaint) should follow processes set out in any local complaints procedure to try to resolve the dispute.

This will normally involve informal discussion between:

  1. Yourself as the person making the decision;
  2. The person whose capacity has been assessed;
  3. Any carers; and
  4. Any appropriate relatives.

If a formal approach to resolve the disagreement is not successful the person making the complaint should be advised of their right to make a formal complaint to the Local Government or Health Ombudsmen.

Depending on the nature of the decision and the dispute it may be appropriate to make an application to the Court of Protection to seek a final determination about mental capacity, or what is in the person's Best Interests.

When a decision is challenged by the Court

If the dispute is bought to the Court of Protection to make a determination about capacity or Best Interests, the Court will:

  1. Review that process that you used to reach the decision that is being challenged; and
  2. Decide that the decision stands; or
  3. Make a different determination about the person's mental capacity or Best Interests.

2. Decisions and Acts of other Professionals and Carers

Sometimes you will be:

  1. Consulted as part of a decision making process; or
  2. Aware of a decision that has been made; and
  3. Concerned that the decision that has been made is not in the Best Interest of the person; or
  4. Concerned that the process used to make the Decision has not applied the Best Interests principle; or
  5. Concerned that the manner in which a Best Interests decision is being implemented is not least restrictive.

If you have concerns you should not ignore them. You should raise them in an appropriate manner, which could be:

  1. Informal, through direct conversation; or
  2. Formal, via the formal complaint process of an organisation.

When deciding how to raise a concern you should seek the advice of your line manager as required, and refer to any available local processes.

Case Example 1

Peter is a social worker who was consulted as part of a Best Interests decision about medical treatment for Eva. The Decision Maker is a consultant at the hospital where Eva is admitted and she has subsequently made a Best Interests decision to proceed with major surgery.

Based on the information provided to Peter about the process of decision making, he is concerned that the consultant may not have taken adequate steps to involve Eva. Eva has no family, limited verbal communication and needs time to digest information. Peter knows that the consultant has visited her on one occasion only, and that she was asleep for most of this visit. He feels that the decision should have been delayed, an advocate should have been arranged and that Eva should have been given more time to express her wishes and feelings.

Peter expresses his concerns through a professional discussion with the consultant but feels that these are disregarded without justification.

Peter seeks the support of his line manager before putting his concerns in writing and making a formal complaint through the hospital's complaints process.

Case Example 2

John lives in a care home and has previously been found to lack capacity to make decisions about some of his daily care routines, such as what to eat, wear or how to spend his time. Ellen is a community nurse and was involved in agreeing how John should be supported to be involved in these choices by carers.

During a visit to the care home, Ellen observes 2 different carers making choices for John without involving him at all. Ellen is concerned that the manner in which the Best Interests decision is being implemented. She talks privately to the Registered Manager of the care home, who confirms that the Care Plan has not been altered and that John's wishes and feelings should be sought prior to carers making any decisions on his behalf.

It transpires that both the carers involved have only recently been employed by the care home, and their understanding of John's Care Plan and the Mental Capacity Act is limited. Ellen agrees a plan with the Registered Manager to address this and plans to review things when she next returns.

3. Deputy's and Donees

Disagreement with a Deputy or Donee

Sometimes you will be involved in, or aware of a decision that has been made by a Deputy or a Donee of a Lasting Power of Attorney.

Unless there is evidence that any of the following apply, you cannot challenge a decision made by a Deputy or Donee, even if you disagree with it:

  1. The Deputy or Donee is no longer an appropriate person to act; or
  2. An Lasting Power of Attorney being used has not been registered; or
  3. The Deputy or Donee has not taken steps to assess the person's capacity to make the decision for themselves; or
  4. The Deputy or Donee may not have the welfare of the person in mind;
  5. The Deputy or Donee is not authorised to make the decision; or
  6. The Best Interests principle has not been applied; or
  7. The manner in which the decision being implements in not least restrictive.

If any of the above applies you must take steps to report concerns to the Office of the Public Guardian. The OPG is responsible for monitoring how Donees and Deputies make decisions, and it will investigate all complaints about the practice of registered Donees and Deputy's.

When a Deputy or Donee declines to make a decision

All Deputy's and Donees have a duty 'not to delegate'. This means they cannot delegate their decision making responsibilities to another person without the permission of the Court to do so.

If  a Deputy or Donee is declining to make a decision that they have responsibility for, or has asked another person to make the decision on their behalf you must take steps to:

  1. Report this to the Office of the Public Guardian; and
  2. In the case of a Deputy, apply to the Court of Protection to make a determination.