Part 8 Best interests decisions
If a decision-maker determines that someone lacks capacity to make a specific decision, the decision-maker must then go on to make that decision – this is called a best interests decision. A best interests decision can only be made after it has been determined that the person lacks capacity.
Principle 4 requires that all decisions are made in the best interests of the person who lacks capacity. The focus must be on this person and their best interests and not that of others, such as family, other patients or residents, or the general public.
Making a best interests decision
The Mental Capacity Act (MCA) can’t lay out a process for making decisions, as the scope for decision making is so wide. It does lay out what needs to be taken into consideration in a best interest checklist.
The best interests checklist
- The decision must not be made on the basis of the person’s age or appearance.
- The person’s behaviour should not lead to assumptions about what might be in their best interests.
- All relevant circumstances need to be considered.
- Is the person likely to regain capacity? Can the decision wait?
- Involve the person in the decision-making as much as possible. Even though they lack capacity to make this decision, their views need to be considered and the process needs to include them as far as possible.
- If the decision concerns life-sustaining treatment, the decision must not be based on a desire to bring about death – the MCA can’t be used for the purposes of euthanasia.
- The decision-maker must consider the person’s past and present wishes, beliefs and values which would influence their decision-making if they had capacity, and other factors they would take into consideration if making their own decision.
- The decision-maker must take into account the views of anyone caring for the person or interested in their welfare – this includes paid and informal carers. If possible, the decision-maker must consult anyone who has a Lasting Power of Attorney or is a deputy appointed by the Court of Protection.
Using the best interests checklist
- The decision-maker is responsible for the decision.
- The decision-maker must consult and involve others as much as possible. Consultation should ensure that the decision is not restricting the rights of the person lacking capacity.
- If the person has no family or friends who can be consulted about a decision they are considered to be ‘unbefriended’. If someone lacks capacity to make a significant decision (a change of accommodation or serious medical treatment) and is unbefriended an Independent Mental Capacity Advocate (IMCA) must be used to provide a report about the person’s situation and views. (Part 15: Independent Mental Capacity Advocates)
- The decision-maker does not have to follow the views of anyone else, but would need good, reasoned arguments for ignoring the views of others.
- The decision-maker should not avoid discussion with people who may disagree with them. Involving people who might disagree with the decision can often reassure them about the process and allow them to accept the final decision.
- There is no prescribed method of consultation. The decision-maker could see family members with the person being assessed if appropriate – but this may not be helpful.
- There is no hierarchy of whose views should carry more weight. The concept of next of kin does not mean anything under MCA.
- A best interests decision must be based on a holistic understanding of the individual within the context of their life, views and wishes. What would be clinically indicated might not be in the person’s best interests when their past views or possible effects of the treatment are considered. For instance someone’s care needs may be better met by moving to a different care home, but the stress of a move or the distance from family contact need to be considered.
- Under the Deprivation of Liberty Safeguards (DoLS) there is a specialist role for experienced staff who have extra training to become a best interests assessor. This role only relates to decisions taken under DoLS and doesn’t apply to best interests decisions made under MCA.
- Decisions still sometimes need to be made in an emergency, when the full best interests process can’t be used. (Part 29: Emergencies)
Formalising a best interests decision
A best interests decision can be made and recorded by the decision-maker. (Part 10: How to record decisions)
It’s often not necessary to hold a Best Interests Meeting to formalise the decision making, but it is always necessary to record the best interests decision.
If you are using the MCA capacity assessment form the best interests decision is recorded on this form. It can also be recorded in a care plan or in notes.
The decision-maker’s role
The MCA gives the power to make a decision to the decision-maker. (Part 7: Being a decision-maker)
Families often assume that they can make decisions and may be upset and angry if their views are not followed. It’s important to make sure people understand how and why decisions are made. The decision-maker may need to explain the law and their role to any family or friends. (Part 24: MCA and family and informal carers)
A decision made by Devon or Torbay councils, an NHS unit or practitioner, or a private provider may not be what family or friends would choose. The organisation needs to be able to demonstrate that it is offering better care for the person who lacks capacity than the care the family are proposing. Every effort will need to be made to resolve disputes about decisions. If it can’t be resolved the decision will need to be considered by the Court of Protection and a welfare determination made under s16 Mental Capacity Act.
If professionals disagree about a decision, the decision-maker makes the final decision. There will need to be appropriate discussion of the issues and a clear record of why the decision is made. A best interests meeting should take place and the procedures for resolving disputes should be followed; ultimately the decision could be made in the Court of Protection. (Part 11: Resolving disputes) (Part 8: Best interests decisions) (Part 23: The Court of Protection)