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Best Interests Decision Makers, Decision Making and Safeguards

1. Who can be a Decision Maker?

Under the MCA, many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves. The person making the decision is referred to throughout this chapter, and in the MCA Code of Practice, as the ‘decision maker’, and it is the decision maker’s responsibility to work out what would be in the best interests of the person who lacks capacity.

For most day to day actions or decisions, the decision maker will be the carer most directly involved with the person at the time.

Where the decision involves the provision of medical treatment, the doctor or other member of healthcare staff responsible for proposing or carrying out the particular treatment or procedure is the decision maker.

Where nursing or paid care is provided, the nurse or paid carer will be the decision maker. It is usual for the person closest to the decision to be the decision maker.

If a Lasting Power of Attorney (LPA or Enduring Power of Attorney) has been made and registered, or a deputy has been appointed under a court order, the attorney or deputy will be the decision maker, for decisions within the scope of their authority.

What this means is that a range of different decision makers may be involved with a person who lacks capacity to make different decisions.

In some cases, the same person may make different types of decision for someone who lacks capacity to make decisions for themselves. For example, a family carer may carry out certain acts in caring for the person on a day to day basis, but if they are also an attorney, appointed under a LPA, they may also make specific decisions concerning the person’s property and affairs or their personal welfare (depending on what decisions the LPA has been set up to cover).

There are also times when a joint decision might be made by a number of people. For example, when a care plan for a person who lacks capacity to make relevant decisions is being put together, different healthcare or social care staff might be involved in making decisions or recommendations about the person’s care package. Sometimes these decisions will be made by a team of healthcare or social care staff. At other times, the decision will be made by a specific individual within the team. A different member of the team may then implement that decision, based on what the team has worked out to be the person’s best interests.

Whoever is making the decision, the most important thing is that the decision maker tries to work out what would be in the best interests of the person who lacks capacity.

2. What must be taken into account when trying to work out someone’s best interests?

2.1 Common factors to take into account

Because every case and every decision is different, the law cannot set out all the factors that will need to be taken into account in working out someone’s best interests. But the MCA sets out some common factors that must always be considered when trying to work out someone’s best interests. These factors are summarised in the ‘checklist’  below:

  • working out what is in someone’s best interests cannot be based simply on someone’s age, appearance, condition or behaviour;
  • all relevant circumstances should be considered when working out someone’s best interests;
  • every effort should be made to encourage and enable the person who lacks capacity to take part in making the decision;
  • 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;
  • special considerations apply to decisions about life-sustaining treatment;
  • the person’s past and present wishes and feelings, beliefs and values should be taken into account;
  • the views of other people who are close to the person who lacks capacity should be considered, as well as the views of an attorney or deputy.

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 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.

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

2.2 Recording

Any staff involved in the care of a person who lacks capacity should make sure they record 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 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.

If a decision needs to be made by the Court of Protection, it will require copies of all best interest decision making records.

3. What Safeguards does the MCA Provide around working out Someone’s Best Interests?

As noted above, the MCA states that anyone working out someone’s best interests must not make unjustified assumptions about what their best interests might be simply on the basis of the person’s age, appearance, condition or any aspect of their behaviour. People who lack capacity to make decisions for themselves should not, therefore, be subject to discrimination or treated any less favourably than anyone else.

‘Appearance’ is a broad term and refers to all aspects of physical appearance, including skin colour, mode of dress and any visible medical problems, disfiguring scars or other disabilities. A person’s ‘condition’ also covers a range of factors including physical disabilities, learning difficulties or disabilities, age related illness or temporary conditions (such as drunkenness or unconsciousness). ‘Behaviour’ refers to behaviour that might seem unusual to others, such as talking too loudly or laughing inappropriately.

4. How does a decision-maker work out what ‘all relevant circumstances’ are?

When trying to work out someone’s best interests, the decision maker should try to identify all the issues that would be most relevant to the individual who lacks capacity and to the particular decision, as well as those in the checklist (see Section 2.1, Common factors to take into account). Clearly, it is not always possible or practical to investigate in depth every issue which may have some relevance to the person who lacks capacity or the decision in question. Relevant circumstances are, therefore, defined as those:

  1. of which the person making the determination is aware; and
  2. which it would be reasonable to regard as relevant.

The relevant circumstances will of course vary from case to case. For example, when making a decision about major medical treatment, a doctor would need to consider the clinical needs of the patient, the potential benefits and burdens of the treatment on the person’s health and life expectancy and any other factors relevant to making a professional judgement. But it would not be reasonable to consider issues such as life expectancy when working out whether it would be in someone’s best interests to be given medication for a minor problem.

Financial decisions are another area where the relevant circumstances will vary. For example, if a person had received a substantial sum of money as compensation for an accident resulting in brain injury, the decision maker would have to consider a wide range of circumstances when making decisions about how the money is spent or invested, such as:

  • whether the person’s condition is likely to change;
  • whether the person needs professional care; and
  • whether the person needs to live somewhere else to make it easier for them.

These types of issues can only be decided on a case by case basis.

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