Best Interest Decisions: A Government Weapon Against Families

The Chain

A Best Interest Decision is rarely a single decision. It is a single assessment that moves between four institutions, each of which defers to the others. The chain begins with one body and ends with a closed loop.

The same paper. Four bodies. Each one deferring to the others. None of them re-makes the underlying assessment from scratch. That is the chain.

Pillar 1: Parliament Condemned the System — Then Did Nothing

This is not a campaigning claim. It is the parliamentary record.

In March 2014, the House of Lords Select Committee on the Mental Capacity Act published its post-legislative scrutiny report after a ten-month inquiry. Lord Hardie, the Committee’s Chairman, said the Act “is not working at all well”. The Committee’s formal finding was that the Mental Capacity Act “has suffered from a lack of awareness and a lack of understanding. The empowering ethos has not been delivered. The rights conferred by the Act have not been realised.”

The Committee reserved some of its sharpest criticism for the Deprivation of Liberty Safeguards (DoLS), declaring them “not fit for purpose” and recommending they be replaced. The evidence the Committee heard suggested that “thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended.”

The Government accepted the findings. In its formal June 2014 response, Valuing every voice, respecting every right, the Government wrote: “The empowering ethos has not been delivered. The rights conferred by the Act have not been realised.” This is the Government, in its own words, accepting that a piece of legislation passed to protect vulnerable adults was failing to do so.

The Joint Committee on Human Rights returned to the same problems in 2018, again in 2022, and again in May 2023 with a letter expressing “deep concern”. The Joint Committee documented that only one in five DoLS applications is approved within the 21 days required by law — the average is 153 days. In 80% of cases, individuals are deprived of their liberty without authorisation for substantial periods. None of this is contested. It is on the parliamentary record.

Pillar 2: The Replacement That Never Came

Parliament not only identified the problem — it passed the legislation to fix it.

The Mental Capacity (Amendment) Act 2019 created the Liberty Protection Safeguards (LPS) to replace DoLS. The new scheme would have extended protections to community settings and to 16- and 17-year-olds, and would have given families faster access to non-means-tested legal aid where deprivation of liberty was being authorised. The Act passed both Houses. The Royal Assent was given.

It has never been brought into force.

Implementation was originally scheduled for October 2020. It was delayed repeatedly. On 5 April 2023, the Government announced that the Liberty Protection Safeguards would be delayed “beyond the life of this Parliament”. The civil servants working on implementation were reassigned to other policy areas. The Welsh Government — which would administer the LPS in Wales but cannot do so until Westminster acts — described itself as “deeply disappointed”.

Research published by the University of Bristol records that the number of DoLS applications rose from under 20,000 a year in 2013 to over 332,000 in 2023–24. The backlog now exceeds 100,000 unprocessed applications. Approximately 49,000 people died waiting for safeguards to be applied. Those are not campaigning figures. They are the consequences of the system Parliament condemned in 2014, the system the replacement legislation was meant to fix, and the system that remains in force because the executive has chosen not to bring the replacement into effect.

The Joint Committee on Human Rights asked the Government, in May 2023, what it intended to do about non-means-tested legal aid for deprivation of liberty challenges — the central protection the LPS would have extended. The Government’s response did not commit to action. The framework Parliament condemned remains in force. The framework Parliament passed to replace it sits unused.

Pillar 3: The Closed Economic Door

If the framework cannot be reformed by Parliament, it might still be challenged by individual families through the courts. Most cannot.

Legal aid for Court of Protection welfare cases is restricted by design. The narrow gateway is Section 21A of the Mental Capacity Act — the route for challenging an authorised deprivation of liberty under DoLS. Section 21A applications attract non-means-tested legal aid. This is the one corner where ordinary families can secure representation.

Every other Court of Protection welfare matter — disputes over family contact, residence, care planning, financial management, restrictions short of formal DoLS authorisation — is means-tested. The thresholds are:

• Disposable capital: £8,000. The family home counts above an allowance of £100,000 of equity. For most homeowners, this disqualifies outright.
• Disposable monthly income: £733.
• Gross monthly income limit: £2,657.
• Partner’s income and capital are included. A working spouse can disqualify the person who needs the representation.

The Law Society’s own research records that “people on incomes already 10% to 30% below the minimum income standard” are excluded from legal aid. The means test thresholds have not been meaningfully updated since 2009. Prices have risen by 40% in that time. The thresholds have not.

And the means test is only the first hurdle. Even if you qualify financially, your case must satisfy a merits test — a judgment, made by the Legal Aid Agency, that your case has reasonable prospects of success. The body assessing whether your challenge to the system has merit is funded by the same state apparatus the challenge is aimed at.

For families above the means threshold but without significant wealth, private representation in a contested Court of Protection welfare case typically runs into tens of thousands of pounds. The case bringing structural change — the case that would set precedent for everyone else — needs senior counsel, expert witnesses, and the resources to see proceedings through to a contested hearing. The squeezed middle — too well-off for legal aid, not wealthy enough to fund a contested challenge — cannot fight effectively.

Pillar 4: The Wealthy Who Can Fight Are Settled With Before Precedent Is Set

This is where the borderline holds.

The closed economic door explains why most families cannot challenge a Best Interest decision. It does not, on its own, explain why the framework remains structurally unchanged after a decade of parliamentary criticism. The second mechanism explains the rest.

When a wealthy family does take a Best Interest case toward a binding hearing — when the council, NHS Trust, or local authority faces the prospect of a judgment that would apply not only to their case but to every other family in the country — the system retreats. The application is withdrawn. The decision is reviewed. An accommodation is reached. The family gets their relative back. The precedent that would have helped everyone else is never made.

This is not conspiracy. It is how high-stakes public law litigation works. Local authorities settle judicial review claims to avoid binding precedent. NHS Trusts withdraw welfare applications when the legal cost-benefit shifts against them. The pattern is documented across housing, immigration, education, and welfare law. The Court of Protection is not exceptional in this respect. It is governed by the same dynamic.

The result is a system insulated from challenge from both ends. Most families cannot afford to fight. The wealthy who can afford to fight are bought off before precedent can be set. The borderline holds. The framework remains exactly as it is. And the families in the middle — too well-off for legal aid, not wealthy enough to force a settlement — absorb the harm in silence.

Pillar 5: The International Human Rights Position

The framework Parliament condemned in 2014 is also the framework an international human rights body has condemned for over a decade.

The United Nations Committee on the Rights of Persons with Disabilities, the body charged with monitoring compliance with the Convention on the Rights of Persons with Disabilities (CRPD), has held in General Comment No. 1 on Article 12 of the Convention that “support in the exercise of legal capacity must respect the rights, will and preferences of persons with disabilities and should never amount to substitute decision-making”. The Committee has stated that “supported decision-making must replace substitute decision-making arrangements as these are discriminatory and deny equal enjoyment of the right to exercise of legal capacity”.

The Mental Capacity Act’s “best interests” test is, on the Committee’s analysis, a substitute decision-making framework. The Committee has stated that the “best interpretation of will and preferences” must replace “best interests” determinations. The United Kingdom is a State Party to the CRPD. It has not implemented this guidance.

This is not a fringe position. It is the published interpretation of the international human rights body whose authority the United Kingdom has accepted. There is academic debate about how far the Committee’s interpretation should go — some scholars argue against complete abolition of substitute decision-making — but the structural critique is mainstream international human rights law.

The framework that drives Best Interest Decisions in the UK is, on this analysis, incompatible with the country’s international human rights obligations. The framework continues in force.

Pillar 6: The Criminal Justice Diversion

The framework does not only close the door on civil challenge. It closes the door on criminal investigation.

When a family raises concerns about what has happened inside the funnel — physical abuse in a care home, theft under deputyship, neglect contributing to death, restraint that crosses into criminal violence — the criminal justice response is routinely diverted into the same statutory framework that produced the harm.

In June 2023, ITV News conducted Freedom of Information requests to police forces across England and Wales. The charge rate for allegations of abuse or neglect at care homes was 1.4%. Over 1,000 allegations in a single year did not result in criminal charges. The Ann King case in Surrey is one of the documented examples: an 88-year-old dementia patient at Reigate Grange care home, family-installed hidden camera footage of abuse, no criminal charges. The Crown Prosecution Service told Surrey Police the “thresholds for criminal charges of assault, abuse or neglect were not met”. One person involved was issued an out-of-court community resolution order. The family is campaigning for a new law — “Ann’s Law” — to make care home abuse and neglect a specific criminal offence.

Hourglass, the leading UK charity working in this area, records that only 0.7% of crimes against older people result in prosecution. One in six older people are victims of abuse each year.

The Crown Prosecution Service itself confirms in its prosecution guidance: “There is not an offence simply of neglect of an older person other than in those circumstances set out in the Mental Capacity Act 2005, the Mental Health Act 1983 and the Criminal Justice and Courts Act 2015.” The available specialist offences each require either a Mental Capacity Act finding that the victim lacks capacity (which loops the case back into the framework the family is challenging), or a specific institutional setting, or a high evidential threshold of “wilful” mistreatment that police are reluctant to find met. The vulnerable person is, in effect, too old or too disabled to be protected by ordinary criminal law on assault or neglect — and the specialist offences are written narrowly enough that police seldom proceed.

Allegations that would, in any other context, prompt a criminal investigation are funnelled instead into Section 42 enquiries under the Care Act 2014. NHS Digital recorded 147,930 concluded Section 42 enquiries in the year ending March 2022 — against a care home population of approximately 344,000 adults across England and Wales. None of those enquiries can produce a prosecution, a criminal record, or a deterrent that follows the individual responsible. The Care Quality Commission collects data on crime incidents reported to or investigated by police in care homes; as the Office for National Statistics has confirmed, these data are not published.

The same pattern holds for financial abuse under deputyship and Lasting Power of Attorney. The Office of the Public Guardian received more than 11,000 concerns in a single year, of which only around a third fell within its legal powers to act. The OPG’s own annual report records 3,647 investigations against 60,516 supervised deputies and over 8 million Lasting Powers of Attorney on the register. The OPG itself notes that its powers end when the donor dies — by which point evidence is often lost and any criminal investigation begins from a cold start, if it begins at all.

This is not a gap in the system. It is the system. The framework that closes families out of civil remedy also shields the people inside it — carers, deputies, attorneys, institutional decision-makers — from the criminal accountability that would apply to anyone harming someone outside the framework. Inside the funnel, ordinary criminal law does not reach.

Who Pays the Price

The combined effect of these six pillars falls hardest on the families with the least power to push back.

Black families face the documented disparities in mental health detention, Community Treatment Orders, and safeguarding referrals before they ever encounter the Best Interest framework. The disparities do not stop at the assessment door. They shape what gets recorded in the assessment that the council, the NHS, the Court, and the Ombudsman then defer to.

Working families — above the legal aid threshold, below the line where private representation is affordable — cannot mount the kind of challenge that produces a ruling. They are the silent majority of the people the framework affects.

Older people, learning-disabled adults, autistic adults, those with brain injuries, those with dementia — the people the Mental Capacity Act was passed to protect — are the people whose rights, on the parliamentary record, “have not been realised”.

Family members who object are routinely treated as the problem. Excluded from Best Interest meetings. Banned from visiting. Accused of being “too involved”. Reported to safeguarding for raising concerns. The pattern is documented across multiple sources and is not exceptional.

What ClearDraft Drafts

Documents that put the legal framework to use, drafted to the standard the system itself sets.

All documents drafted by ClearDraft are reviewed before delivery. Standard turnaround is 48 hours from full instructions and payment. Up to 3 free edits within 24 hours of delivery.

Special Cases

The Honest Closing

You are not entering a neutral system. The framework was condemned by Parliament more than ten years ago. The replacement legislation was passed and abandoned. The Court of Protection applies the same framework that drove the decision you are challenging. The Ombudsman cannot review the merits. International human rights authority says the framework itself is incompatible with the rights it claims to protect. Legal aid is restricted to a narrow gateway. The wealthy who can fight are settled with before precedent can be set. The criminal law does not reach inside the funnel. The civil law that does reach is restricted to those who can afford it.

The system is engineered to operate at the borderline of what the law permits. Statutory frameworks designed to protect vulnerable adults are being used in ways the law tolerates but did not intend. The borderline holds because the people who could test it cannot afford to. Rights that exist on paper cannot be enforced.

That does not mean nothing can be done.

Properly drafted documents force the system to engage with the case on the legal terms it has set. They put the Mental Capacity Act, the Code of Practice, the relevant statutory complaint procedures, and the human rights framework on the record in your case. They make the council, the Trust, the Court, and the Ombudsman answer to the standard they themselves are bound by. That is the ground on which the system can be made to respond.

Sources Cited on This Page

• House of Lords Select Committee on the Mental Capacity Act 2005, Mental Capacity Act 2005: Post-Legislative Scrutiny, HL Paper 139, 13 March 2014
• HM Government, Valuing every voice, respecting every right: Making the case for the Mental Capacity Act (Cm 8884), June 2014
• Joint Committee on Human Rights, letters to the Minister of State for Social Care, May 2023 (and earlier reports 2018 and 2022)
• Mental Capacity (Amendment) Act 2019; Department of Health and Social Care announcement, 5 April 2023
• University of Bristol, PolicyBristol, Implementing the Liberty Protection Safeguards, policy briefing
• The Law Society, Legal aid means test review — what’s changing, 2024
• Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013
• UN Convention on the Rights of Persons with Disabilities, Article 12; UN Committee on the Rights of Persons with Disabilities, General Comment No. 1, 2014
• Bartlett, P., Re-thinking the Mental Capacity Act 2005: Towards the Next Generation of Law, Modern Law Review, 2023
• Local Government and Social Care Ombudsman, Guidance on Jurisdiction and Manual for Councils
• Mental Capacity Act 2005, sections 1, 4, and 21A; Mental Capacity Act Code of Practice
• ITV News, Caught on hidden cameras — yet just 1% of care home abuse ends in charges, June 2023, and Police accused of ‘victim-blaming’ over care abuse caught on camera, March 2024
• Hourglass (formerly Action on Elder Abuse), published research on prevalence and prosecution rates of crimes against older people
• Crown Prosecution Service, Older People: Prosecuting Crimes Against, prosecution guidance
• NHS Digital, Safeguarding Adults Collection, year ending March 2022
• Office for National Statistics, Incorporating data on crimes experienced by care home residents into crime statistics, December 2023
• Office of the Public Guardian, Investigations at OPG, January 2026; OPG Annual Report 2023–24
• Care Act 2014, section 42; Mental Capacity Act 2005, section 44 (ill-treatment or neglect); Criminal Justice and Courts Act 2015, section 20 (ill-treatment or wilful neglect)

Frequently Asked Questions