It is for professionals in developing support plans with users and carers to balance the needs of both. In doing so they need to ensure that an assessment of risk is undertaken and that the support plan reflects that in a proportionate manner as stated in the "Independence, choice and risk: a guide to best practice in supported decision" (May 2007).
The Health and Social Care Act 2008 extended direct payments to those people who lack capacity to consent and who are currently excluded from the scheme. These people will now be able to benefit from direct payments through the appointment of a 'suitable person', often a friend or relative, to receive the payment on their behalf. The Department has recently consulted on draft regulations to implement this extension which, along with revised accompanying guidance, will come into force this year.
Anyone making decisions for a person who lacks capacity, including a suitable person who receives direct payments on that person's behalf, is obliged under the Mental Capacity Act (MCA) to act at all times in the best interests of the person lacking capacity. Acting in someone's best interests includes involving them in the decision-making process as far as is reasonably practicable to make sure that the person is able to have as much input as possible into decisions about their care. Suitable persons will need to be able to demonstrate how they have spent the direct payment and councils will have the power to stop the direct payment if it is not being spent in the way which it was intended when it was made.
We are also taking action to ensure advice is made available to families who will manage direct payments on behalf of an individual who lacks capacity. The Government are making resources available under the MCA grant to councils and primary care trusts to train professionals on all aspects of working with people who lack capacity and taking best interest decisions on their behalf. Councils decide how best to use these resources on training, awareness raising and appointing specialist MCA professionals.