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Decision Makers and Decision Making

Who can be a decision maker?

The person making the decision is referred to as the ‘decision maker’. It is their 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.

Where the person who lacks mental capacity has a Lasting Power of Attorney (LPA), an Enduring Power of Attorney (EPA) or is a deputy appointed under a court order, they will be the decision maker for decisions which their position allows them to take. This means that a range of different decision makers may be involved with a person who lacks capacity, to make different decisions.

There are also times when it is appropriate for the decision to be made by a number of people. For example, when a care and support plan for a person who lacks capacity is being developed, 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 can 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 in the person’s best interests.

Best interests checklist

Because every case and every decision is different, the MCA lays out factors that must always be considered when trying to work out someone’s best interests. These are:

  • working out what is in someone’s best interests cannot simply be based on their age, appearance, health condition or behaviour;
  • all the relevant circumstances should be considered when working out the person’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 they 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;
  • there are special considerations that need to be taken into account about decisions regarding 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 should be considered, as well as the views of an attorney or deputy.

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

It is important not to take shortcuts in working out best interests. A proper assessment must be carried out each time.

If the decision is urgent, there may not be time to examine all possible factors, but it will still be important to show that the decision is being made in the person’s best interests.

It should also 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.

Recording

Anyone 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.

Confidentiality

If confidential information needs to be discussed, for example about medical treatment or financial issues, the decision maker should only consult with those people whose views are relevant to the decision that needs to be made and the particular circumstances. It should not be discussed with others who are not involved in the decision making process.

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 Best Interests Checklist, they will have complied with the best interests principle. What is important is that the decision maker is 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.

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