The Court of Protection has made clear that the wishes and feelings of a person lacking capacity should not automatically be given less weight.
The matter was explored in a recent case of Wye Valley NHS Trust v B , whereby, it was concluded that it was not in the best interests of an elderly man with a mental illness to undergo a life-saving amputation to which he was strongly opposed.
When a decision is made on behalf of a person who lacks mental capacity, it must be made in the person’s best interests. So far as reasonably practical a person must be permitted and encouraged to participate as fully as possible in any decision affecting them.
Judge Peter Jackson J, stated “once incapacity is established so that a best interests decision must be made, there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due.”
At Wilson Browne Solicitors, our specialist Court of Protection Team offer impartial advice and guidance to Attorneys and Deputies surrounding their duties and assist with applications to the Court of Protection where necessary.