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Best Interests Checklist

The points below must be taken into consideration when working out what is someone’s best interests who lacks mental capacity.

The paragraph numbers apply to the Mental Capacity Act Code of Practice which provides more detail.

  • Working out what is in someone’s best interests cannot be based simply on someone’s age, appearance, condition or behaviour (see paragraphs 5.16–5.17).
  • All relevant circumstances should be considered when working out someone’s best interests (paragraphs 5.18–5.20).
  • Every effort should be made to encourage and enable the person who lacks mental capacity to take part in making the decision (paragraphs 5.21–5.24).
  • If there is a chance that the person will regain the capacity to make a particular decision, then it may be possible to put off the decision until later if it is not urgent (paragraphs 5.25–5.28).
  • Special considerations apply to decisions about life sustaining treatment (paragraphs 5.29–5.36).
  • The person’s past and present wishes and feelings, beliefs and values should be taken into account (paragraphs 5.37–5.48).
  • The views of other people who are close to the person who lacks mental capacity should be considered, as well as the views of an attorney or deputy (paragraphs 5.49–5.55).

It is important not to take shortcuts in working out best interests, and a proper and objective assessment must be carried out on every occasion.

If the decision is urgent, there may not be time to examine all possible factors, but the decision must still be made in the best interests of the person who lacks mental capacity.

Not all the factors in the checklist will be relevant to all types of decisions or actions, and in many cases other factors will have to be considered as well, even though some of them may then not be found to be relevant.

What is in a person’s best interests may well change over time. This means that even where similar actions need to be taken repeatedly in relation to the person’s care or treatment, the person’s best interests should be regularly reviewed.

Any staff involved in the care of a person who lacks mental capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision, setting out:

  • how the decision about the person’s best interests was reached;
  • what the reasons for reaching the decision were;
  • who was consulted to help work out best interests; and
  • what particular factors were taken into account.

This record should remain on the person’s case file.

For major decisions based on the best interests of a person who lacks capacity, it may also be useful for family and other carers to keep a similar kind of record.

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