Acknowledgment is given to the Royal Borough of Kensington and Chelsea for the use of their guidance document in the preparation of this section.
When we make a decision for ourselves, we are normally choosing between two or more options. We are trying to decide what is the best course of action for us, given what we know about the current situation, what the future is likely to be and what we want. The decision we make will probably be a ‘best guess’ as to what will give us the best outcome, after weighing up the pros and cons of the options. Some of these choices may be heavily influenced by our attitudes, values and beliefs, by our emotional state, or by the views of other people who are important in our lives.
One of the five main principles (see The Five Principles of the Mental Capacity Act) of the MCA is that:
An act done or decision made under this Act for or on behalf of a person who lacks capacity must be done, or made, in his/her best interests. This is regardless of who the decision-maker is (for example, family carer or paid care worker) and regardless of the decision to be made (for example, what to wear or where to live). The only exceptions are listed in Appendix 1.
For most day to day actions or decisions, the decision maker will be the carer most directly involved with the person at the time.
Ultimately if the decision involves whether or not to accept proposed social care, the care/case manager proposing the care plan will be the decision maker.
Ultimately where the decision involves the provision of medical treatment, the decision maker will be the doctor or other healthcare professional responsible for proposing and / or carrying out the particular treatment or procedure.
If a Lasting Power of Attorney (LPA) which is relevant to the decision has been made and registered then the attorney will be the decision maker, unless the person specifically excluded this decision.
If the Court of Protection has appointed a deputy, the deputy will be the decision maker if the decision is within the scope of their authority.
If the person has written an advance decision and this is relevant to the decision to be made, it must be followed. See Advance Decision to Refuse Treatment.
The ‘Principles to follow’ and ‘Steps to take’ are together known as the statutory checklist from the Act. For ease of use in this section, they have been integrated and guidance from the MCA Code of Practice added to help practitioners apply them more readily in practice.
In making a best interests decision, you will need to consider the person’s current and future interests, weigh them up and decide which course of action is, on balance, the best course of action for that person. The concepts of ‘on balance’ and ‘reasonable belief’ are used throughout the Act as the test of your decision.
See also The Five Principles of the MCA.
Consider whether the person will regain capacity and, if so, if the decision can be put off until then. This includes considering whether the person has fluctuating capacity or will develop skills that will lead to them gaining capacity to make this decision for themselves in the future.
Anyone who lacks capacity to consent to certain major decisions, and who does not have someone to support or represent them, must be referred to an Independent Mental Capacity Advocate (IMCA). These decisions are:
See also The Independent Mental Capacity Advocate Service in order to identify the need for an IMCA and refer in a timely manner.
In taking best interests decisions in court, judges have often used the ‘balance sheet’ principle, drawing up a list of the emotional, medical, social and welfare benefits and disadvantages (including the likelihood of each benefit or disadvantage occurring) of the proposed alternatives. It may be helpful to work through the statutory checklist to try to ensure you do not miss any of the relevant factors. See the example in Appendix 2.
Before the decision is made, you must consider whether the purpose for which the decision is needed, can be as effectively achieved in a way that is the least restrictive of the person’s rights and freedom of action.
Do not make the decision based on what you would want to do if you were the person lacking capacity to take that decision.
What is in the person’s best interests may change over time so it is important to regularly review their best interests.
The decision can benefit someone else, (for example easing the burden on a family carer) as long as it is still in the person’s best interests (MCA Code of Practice, 2007 p 83).
It is important to record the following information:
The tool contained in Appendix 3 can be used to record your best interests decision; this should follow on from your formal capacity assessment, which can be recorded using the mental capacity assessment tool (see Section 5, Assessment Tools, Assessing Mental Capacity).
Best interests meetings should be held when the decision maker would like formal support from the multi-disciplinary team to make the decision, or when there is an unresolved dispute between the decision maker and family members or other professionals.
The meetings should be chaired by the case manager themselves if appropriate or an experienced member of staff in the decision maker’s team. In particularly complex cases the team manager or a team manager from another team could be asked to chair the meeting.
After the meeting the chair will review and distribute the minutes.
An advocate may be able to help settle a disagreement simply by presenting a person’s feelings to their family, carers or professionals.
Mediation can help to settle a dispute informally.
If family, friends, carers or an IMCA disagree with the decision maker’s best interests decision, they can follow the usual local complaints procedure (for example, Coventry City Council Adult Social Care Complaints Procedure).
Certain major decisions about a person’s social care, serious healthcare issues and some major medical treatments may need to be made by the Court of Protection.
If there is a major disagreement regarding a serious decision, for example, where someone should live, the decision maker should consider with their line manager the appropriateness of making an application to the Court of Protection via Legal Services. All referrals to legal services should come through your manager, so ensure you discuss the need for legal advice with them. If a decision is taken to proceed to the Court of Protection, the allocated Lawyer will seek full instructions from the decision maker and proceed to apply to the Court for permission to start proceedings.
The person themselves (with support) may apply to the Court, in most cases without permission.
The Court can make a declaration as to whether the person has capacity in relation to the decision in question, and whether a specific act relating to a person’s care or treatment is lawful (whether or not the act is proposed or has already been carried out).
If someone suspects that a person who lacks capacity to make decisions to protect themselves is at risk of harm or abuse from a named individual, the Court could make an order preventing that individual from contacting the person.
If the person has no savings and their only income is state benefits, an application can be made to the Department of Work and Pensions for appointeeship. Although appointees are not covered by the MCA, they are expected to act in the person’s best interests. In these cases the decision maker must discuss their proposed actions and gain support from their manager.
If the person has savings or other income that needs to be accessed, an application can be made to the Court of Protection. This could be for a one-off decision, or (if the person’s property needs to be sold for example) to request the Court to appoint a court-nominated deputy (in Coventry normally Age UK or a local solicitor). In general, permission to apply to Court is not needed for property and affairs applications, but this must be confirmed by legal services.
The decision maker will need to follow the principles of the Mental Capacity Act before referring to Legal Services. This means they will need to help the person gain understanding of their own affairs, carry out a capacity assessment and (if the person lacks capacity in relation to some of their financial affairs) decide whether it is in the person’s best interests that someone else manages their affairs.
There are a number of decisions that cannot be made using the MCA; these include decisions about voting or getting married for example. See also Decisions that cannot be made under the Mental Capacity Act 2005, What is the Mental Capacity Act and What does it Do?
In addition there are two other areas that have rules which affect the use of the MCA.
Medical treatment for mental disorder of a person who is under Part IV of the Mental Health Act 1983 is not covered by the Mental Capacity Act 2005. Further information about the interface between the Mental Capacity Act and the Mental Health Act can be found in the Code of Practice Mental Health Act 1983.
There are extra rules relating to carrying out research with people who lack capacity to consent to the research. See Research Involving People who may Lack Capacity.
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