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Differences of Opinion

Family members, partners or carers may disagree between themselves, or they might have different memories about what views the person expressed in the past. Carers and family might also disagree with a professional’s view about the person’s care or treatment needs. The decision maker will need to be able to balance such concerns or decide between them.

To help resolve such situations, the decision maker should review all parts of the Best Interests Checklist with everyone involved. This should include the person who lacks mental capacity as much as they can take part, as well as anyone who has been involved in earlier discussions. It may be possible to reach an agreement at a meeting where everybody has been able to air their views. The final responsibility for deciding the person’s best interests, however, belongs to the decision maker.

Where agreement cannot be reached about a serious decision (where a person should live or medical treatment for example) an application should be made to the Court of Protection to resolve the situation.

People who may have a conflict of interest should not be cut out of the process (for example, those who stand to inherit from the person’s will or medical treatment). But the decision maker must always make sure that the interests of those consulted do not unduly influence the process. The decision maker should consider:

  • how long an individual has known the person who lacks capacity, and
  • what their relationship is.

Additional information

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