This information applies to England and Wales only.
What are Best Interests?
The Mental Capacity Act 2005 Section 1 (5) introduces the principle of “Best Interests” as a safeguarding principle to protect those without capacity. The Mental Capacity Code of Practice states that any act that is done or any decision made for a person that lacks capacity must be considered to be in the person’s “best interests”. This is regardless of who is making the decision and irrespective of the nature of the decision required.
Many different people can be decision-makers under the Mental Capacity Act and this will vary according to the various decisions that are to be made. Decisions will be required for tasks of daily living; in this instance, those caring for the individual are likely to be the decision-makers. Where more complex decisions are required, it is necessary to seek a decision-maker with appropriate experience and qualifications.
As long as the person/people making the decision can justify their decision they will be protected from liability. The Act introduces a checklist that decision-makers must follow when considering what is perceived to be in a person’s best interests. This requires decision-makers to:
• Consider all the relevant circumstances
• Consider a delay until the person regains capacity
• Involve the person
• Consider the individual’s own past and present wishes and feelings.
• Not be motivated to bring about death
• Consider any advance statements made (at the time when they had the capacity to do so)
• Consider the beliefs and values of the individual
• Take into account views of family and informal carers
• Take into account views of Independent Mental Capacity Advocate or other key people
• Show it is the least restrictive option
It is important for those making decisions to show their workings and to document any decisions made. Decisions can be short or long term and can be reviewed according to need or changes in circumstance.
It is important to understand that if an advance decision has been made by an individual at a time when they had the capacity to make decisions, their wishes must be adhered to. It is also necessary to consider the individual’s past and current wishes, as well as likely beliefs and values and any other factors that may influence a decision. Examples can include religion, culture and political values.
All those involved in the care or welfare of an individual should be consulted about any decisions required. Such people include family members, friends, social care workers and health professionals.
As with any decision where people are required to make an opinion there is a risk of contention. It is usually possible to settle these disputes informally through discussion and a weighing up of possible options. However, when there is no resolution found and interested parties wish to contest a decision there are several options available:
Involve an advocate to act on behalf of the person who lacks the capacity to make the decision
Get a second opinion
Hold a formal or informal ‘best interests’ case conference.
Attempt some form of mediation
Pursue a complaint through the organisation’s formal procedures.
If all else fails the decision can be made through the Court of Protection
What happens in an emergency?
Sometimes those who lack capacity will require urgent medical care. Unless advance decisions have been made it is likely to be considered reasonable for medical professionals to give urgent treatment without delay.
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Read and download our factsheet on The Mental Capacity Act 2005 – “Best Interests” below: