Code of Practice(reproduced in full in appendix A)Alternative dispute resolution:Code of PracticeAlternative dispute resolutionCodes of Practice:Mental Capacity Act 2005 Code of Practice (2007):para 5.64Codes of Practice:Mental Capacity Act 2005 Code of Practice (2007)Alternative dispute resolution:Code of PracticeAlternative dispute resolutionCodes of Practice:Mental Capacity Act 2005 Code of Practice (2007):para 15.6Codes of Practice:Mental Capacity Act 2005 Code of Practice (2007):para 15.3Codes of Practice:Mental Capacity Act 2005 Code of Practice (2007):Chapter 15Alternative dispute resolution:Code of PracticeAlternative dispute resolutionCodes of Practice:Mental Capacity Act 2005 Code of Practice (2007):para 15.7Codes of Practice:Mental Capacity Act 2005 Code of Practice (2007)Alternative dispute resolution:Code of PracticeAlternative dispute resolutionCodes of Practice:Mental Capacity Act 2005 Code of Practice (2007):para 15.13Codes of Practice:Mental Capacity Act 2005 Code of Practice (2007)Alternative dispute resolution:Code of PracticeAlternative dispute resolution
19.4The Code of Practice
1Available at: www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpgacop_20050009_en.pdf. to the Mental Capacity Act (MCA) 2005 provides guidance to decision-makers about managing ‘conflicting concerns’ when establishing the best interests of a person who lacks capacity. Paragraph 5.64 reads:
The decision-maker will need to find a way of balancing these concerns or deciding between them. The first approach should be to review all elements of the best interests checklist with everyone involved. They should include the person who lacks capacity (as much as they are able to take part) … It may be possible to reach agreement at a meeting to air everyone’s concerns. But an agreement in itself might not be in the person’s best interests. Ultimate responsibility for working out best interests lies with the decision-maker.
19.5Chapter 15 of the Code concerns settling disagreements. The Code stresses again the importance of the person without capacity having support and representation,
2Code of Practice para 15.3. including during mediation.
3Code of Practice para 15.6.19.6The Code advocates mediation as a means of solving a problem at an early stage. The Code makes a number of claims for mediation, which it describes as offering a wider range of solutions than court proceedings as well as having the potential to be ‘less stressful, more cost-effective and quicker. People who come to an agreement through mediation are more likely to keep to it, because they have taken part in mediation’.
4Code of Practice para 15.7.19.7The Code refers to the availability of legal aid funding for mediation but states this is available mainly for family mediation.
5Code of Practice para 15.13. This is not entirely correct: see para 19.29 below.
19.8The emphasis in the Code on co-operation does not detract from the need to refer matters to the court where it is not possible to reach agreement: see
G v E (deputyship and litigation friend)6[2010] EWHC 2512 (COP), [2010] COPLR Con Vol 470. and
Hillingdon LBC v Neary.
7[2011] EWHC 1377 (COP), [2011] COPLR Con Vol 632.