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What does best interests mean? It is a well-established principle that when a person lacks capacity to make any decision, the decision which is made by others, be it professionals or the court, should be made in the person’s best interests. While the Mental Capacity Act 2005 does not expressly define the term ‘best interests’, Section 4 of the act does provide a checklist of factors to be taken into account when making a best interests decision. Thus, there is no ‘best interests law’, in a literal sense, but a range of factors that must be taken into account when making a decision on behalf of a person, in their best interests.
What factors should be considered when making a best interests decision?
The checklist of factors to be taken into account when making a best interests decision, are as follows:
The past and present wishes and feelings of the client and, in particular, any written statements which may have been made when he/she had capacity
The client’s values and beliefs that would have been likely to influence his/her decision if he/she still had capacity
Any other factors that the client would have considered if he/she were able to do so
Best interest decision examples include dealing with decisions in relation to the client’s finances, property, where they will live and how their care needs will be provided for.
There is often confusion in respect of what factors would contribute towards a person’s wishes and feelings, below is a list of examples of factors which would form a person’s wishes and feelings:
It is also paramount that the decision maker considers whether it is likely that the person will regain capacity in relation to the matter in question, and if so when that is likely to be. If this is in the near future, and the decision does not need to made imminently, steps should be taken to delay the decision. Furthermore, the decision maker must, so far as reasonably practicable, encourage the person to participate, as fully as possible in any act done for him/her and any decision which will affect him/her.
In considering what is in a person’s best interests it is important for the decision maker to ensure that their decision isn’t solely based on a person’s age, appearance, gender, sexuality, race, ethnic background or religion. Furthermore, Section 4 of the act also states that a decision should not merely be based on a person’s condition or an aspect of their behaviour, as these factors might lead to an unjustified assumptions about what might be in a person’s best interests.
During the best interests decision process, the following people should be consulted for their views:
It is essential that the decision maker makes the appropriate enquiries to ascertain the views of those listed above.
If a person has made an advance decision to refuse certain medical treatment whilst they had capacity and there is no reason to believe they subsequently changed their mind, the advance decision should be respected and upheld. Furthermore, Section 27 of the Mental Capacity Act 2005 provides an express list of decisions which cannot be made in a person’s best interests without applying to the court, these are as follows:
Once a decision maker has taken all of the necessary steps set out in the checklist within Section 4 of the act, they must employ what the court has described as a ‘balance sheet’ approach, which means weighing the likely advantages for the person against the likely disadvantages. Only if the ‘account’ is ‘relatively significantly in credit’, will the intervention be in the person’s best interests – this approach was set out in the case of Re A (Medical Treatment: Male Sterilisation) (2000).
It may sometimes be the case that several people are involved in making decisions on behalf of someone and they may not always all agree on what is in the best interests of the client. It may be that all of the parties involved decide to have a ‘best interests meeting’ where a wide range of factors can be discussed with everyone present at the same time. Logistically, this isn’t always possible, but everyone who would have a say in the decisions that need making should still have their views considered, whether they are able to attend the best interests meeting or not.
In the event that a unanimous decision cannot be reached either amongst professionals or with family members, the appropriate responsible body, be that the local authority or the Clinical Commissioning Group (CCG), should make an application to the Court of Protection for a decision to be made by a judge.
Should you find yourself in a dispute in respect of a decision which is made in a loved one’s best interests, please do not hesitate to contact us on 01616 966 229 for assistance.
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