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Consultation, Flexibility and Dealing with Conflict

1. Who should be Consulted when working out Someone’s Best Interests?

The MCA places a duty on the decision maker to consult other people close to a person who lacks capacity, where practical and appropriate, on decisions affecting the person and what might be in the person’s best interests. This also applies to those involved in caring for the person and interested in the person’s welfare. The decision maker has a duty to take into account the views of the following people, where it is practical and appropriate to do so:

  • anyone the person has previously named as someone they want to be consulted;
  • anyone involved in caring for the person;
  • anyone interested in their welfare (for example, family carers, other close relatives, or an advocate already working with the person);
  • an attorney appointed by the person under a LPA; and
  • a deputy appointed for that person by the Court of Protection.

If there is no one to speak to about the person’s best interests, in some circumstances the person may qualify for an Independent Mental Capacity Advocate (IMCA).

Decision makers must show they have thought carefully about who to speak to. If it is practical and appropriate to speak to the above people, they must do so and must take their views into account. They must be able to explain why they did not speak to a particular person; it is good practice to have a clear record of their reasons. It is also good practice to give careful consideration to the views of family carers, where possible.

It is also good practice for healthcare and social care staff to record at the end of the process why they think a specific decision is in the person’s best interests. This is particularly important if healthcare and social care staff go against the views of somebody who has been consulted while working out the person’s best interests.

The decision maker should try to find out:

  • what the people consulted think is in the person’s best interests in this matter; and
  • if they can give information on the person’s wishes and feelings, beliefs and values.

This information may be available from somebody the person named before they lost capacity as someone they wish to be consulted. People who are close to the person, such as close family members, are likely to know them best. They may also be able to help with communication or interpret signs that show the person’s present wishes and feelings. Everybody’s views are equally important, even if they do not agree with each other. They must be considered alongside the views of the person who lacks capacity and other factors.

Where an attorney has been appointed under a LPA (or EPA) or a deputy has been appointed by a court, they must make the decisions on any matters they have been appointed to deal with. Attorneys and deputies should also be consulted, if practical and appropriate, on other issues affecting the person who lacks capacity.

For instance, an attorney who is appointed only to look after the person’s property and affairs may have information about the person’s beliefs and values, wishes and feelings, that could help work out what would be in the person’s best interests regarding healthcare or treatment decisions.

2. How can Decision Makers respect Confidentiality?

Decision makers must balance the duty to consult other people with the right to confidentiality of the person who lacks capacity. So if confidential information is to be discussed, they should only seek the views of people who it is appropriate to consult, where their views are relevant to the decision to be made and the particular circumstances.

There may be occasions where it is in the person’s best interests for personal information (for example, about their medical condition, if the decision concerns the provision of medical treatment) to be revealed to the people consulted as part of the process of working out their best interests. Healthcare and social care staff who are trying to determine a person’s best interests must follow their professional guidance, as well as other relevant guidance, about confidentiality (see Coventry’s Information Sharing Guidance on Beacon).

3. Reasonable Belief about a Person’s Best Interests

If someone acts or makes a decision in the reasonable belief that what they are doing is in the best interests of the person who lacks capacity, provided they have followed the checklist (see Decision Makers, Decision Making and Safeguards, Common factors to take into account), they will have complied with the best interests principle. Coming to an incorrect conclusion about a person’s capacity or best interests does not necessarily mean that the decision maker would not get protection from liability. But they must be able to show that it was reasonable for them to think that the person lacked capacity and that they were acting in the person’s best interests at the time they made their decision or took action.

Where there is a need for a court decision, the court is likely to require formal evidence of what might be in the person’s best interests. This will include evidence from relevant professionals. But in most day to day situations, there is no need for such formality. In emergency situations, it may not be practical or possible to gather formal evidence.

Where the court is not involved, people are still expected to have reasonable grounds for believing that they are acting in somebody’s best interests. This means that decision makers cannot simply impose their own views. They must have objective reasons for their decisions, and they must be able to demonstrate them. They must be able to show they have considered all relevant circumstances and applied all elements of the best interests checklist.

4. Potential Problems which could arise when working out Someone’s Best Interests

It is important that the best interests principle and the statutory checklist are flexible. Without flexibility, it would be impossible to prioritise factors in different cases – and it would be difficult to ensure that the outcome is the best possible for the person who lacks capacity to make the particular decision. Some cases will be straightforward. Others will require decision makers to balance the pros and cons of all relevant factors. But this flexibility could lead to problems in reaching a conclusion about a person’s best interests.

5. What Happens when there are Conflicting Concerns?

A decision maker may be faced with people who disagree about a person’s best interests. Family members, partners and carers may disagree between themselves, or they might have different memories about what views the person expressed in the past. Carers and family might also disagree with a professional’s view about the person’s care or treatment needs.

The decision maker will need to find a way of balancing these concerns or deciding between them. The first approach should be to review all elements of the best interests checklist with everyone involved. They should include the person who lacks capacity (as much as they are able to take part) and anyone who has been involved in earlier discussions. It may be possible to reach an agreement at a meeting to air everyone’s concerns. But an agreement in itself might not be in the person’s best interests. Ultimate responsibility for working out best interests lies with the decision maker.

At the same time, paid care workers and voluntary sector support workers may have specialist knowledge about up-to-date care options or treatments. Some may also have known the person for many years.

People with conflicting interests should not be cut out of the process (for example, those who stand to inherit from the person’s will may still have a right to be consulted about the person’s care or medical treatment). But decision makers must always ensure that the interests of those consulted do not overly influence the process of working out a person’s best interests. In weighing up different contributions, the decision maker should consider:

  • how long an individual has known the person who lacks capacity; and
  • what their relationship is.

6. Settling Disputes about Best Interests

If someone wants to challenge a decision maker’s conclusions, there are several options:

  • involve an advocate to act on behalf of the person who lacks 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.

Ultimately, if all other attempts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

7. Advocacy

An Independent Mental Capacity Advocate (IMCA) is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either:

  • a long term care move;
  • serious medical treatment;
  • safeguarding adult procedures; or
  • a care and support plan review.

Click on the link for IMCA forms and contact details.

Other advocates are also available. They might be useful in providing support for the person who lacks capacity to make a decision in the process of working out their best interests, if:

  • the person who lacks capacity has no close family or friends to take an interest in their welfare, and they do not qualify for an IMCA;
  • family members disagree about the person’s best interests;
  • family members and professionals disagree about the person’s best interests;
  • there is a conflict of interest for people who have been consulted in the best interests assessment (for example, the sale of a family property where the person lives);
  • the person who lacks capacity is already in contact with an advocate;
  • the proposed course of action may lead to the use of restraint or other restrictions on the person who lacks capacity;
  • there is a concern about the protection of an adult who is experiencing or at risk of abuse or neglect.

Click on the link for information about the Care Act Advocacy Service.

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