Best Interests Decision Making: Guidance for Staff

Acknowledgment is given to the Royal Borough of Kensington and Chelsea for the use of their guidance document in the preparation of this section.

The aim of this guidance is to summarise the Mental Capacity Act 2005 and the principles outlined in the MCA Code of Practice around best interests decision making.

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.

3.1 Principles to Follow

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.

• You may however need to make a series of short term decisions until the time comes that the client regains their capacity, indeed you may find the decision may be able to be put off altogether.
• If the decision concerns life sustaining treatment, don’t be motivated by a desire to bring about the person’s death (Mental Capacity Act 2005; MCA Code of Practice, 2007 p65)
• Avoid discriminating against the person, for example by making an assumption about what would be in their best interests (for example, assuming that adults with learning difficulties are better off not living with their parents, or an older adult would be better off receiving care in a care home).
• You need to take the following steps and also have a reasonable belief that the decision you make is in the person’s best interests.
• The steps also apply to donees of Lasting Power of Attorneys (LPAs) and court appointed Deputies.

3.2 Steps to take

• Consider all the circumstances of which you are aware and which it would be reasonable for you to regard as relevant.
• Encourage the person to participate in the best interests decision making (you will have tried to help them to make the decision for themselves and now need to continue to keep them involved in and informed about the decision making process).
• Consider (as far as is reasonably ascertainable – this means considering all possible information that was available to you at the time) the person’s:
  • past and present wishes and feelings (these may have been expressed verbally, through behaviour, emotional responses or habits or in writing. It is important to be sure that other people have not influenced the person’s views – an advocate could help the person to express their views, especially if they are not entitled to an Independent Mental Capacity Advocate);
  • beliefs and values that would influence their decision if they had capacity to take it (for example religious, cultural, moral or political. The person may have previously set out their beliefs and values in a written statement);
  • the other factors the person would be likely to consider if they could do so (for example the effect of the decision on other people, obligations to dependants, the duties of a responsible citizen);
  • you will also need to seek the views of the people listed in the paragraph below about the person’s wishes, feelings, beliefs, values and factors they would consider;
• Take into account, if it is practical and appropriate to consult them, the views of the following people on what is in the person’s best interests. In weighing up these views, consider how long the contributor has known the person and what their relationship is (including any conflicts):
• anyone named by the person to be consulted;
• anyone engaged in caring for the person, both formally and informally;
• anyone interested in the person’s welfare, including family and friends.

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:

• a long-term care move;
• serious medical treatment;
• safeguarding adult procedures – a Care Act advocate will be required in all cases, but an IMCA can be appointed as well; or
• a care and support plan review.

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:

• how the decision about the person’s best interests was reached;
• what the reasons were for reaching the decision;
• who was consulted to help work out best interests;
• what particular factors were taken into account;
• if the person has made an advance decision and your decision does not follow this, you need to specifically record the reasons for this.

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.

9.1 Role of the chair

9.1.1 Before the meeting

• Confirm that a capacity assessment has been carried out and the person does lack the capacity to make the relevant decision.
• Be clear what decision or decisions need to be made and when. Ensure they do not include decisions that you cannot use the Mental Capacity Act to make (see Appendix 1) in which case the decision needs to be brought before a Court of Law.
• Ensure that all the relevant people are invited to the meeting, and if they cannot attend, they are asked to provide information to be shared at the meeting. Relevant people include the person responsible for implementing the decision, key staff who currently care for the person, any involved family members or friends and (if they have been appointed) anyone named by the person as someone to be consulted and any donee or deputy. (The donee or deputy may or may not be the decision-maker for this specific decision.)
• Ensure that there is someone available to take notes of the meeting, who is different from the chair. Ideally a minute taker, who is not involved in providing information at the meeting, should attend.

9.1.2 During the meeting: Agenda template

• Introductions, including ground rules.
• Purpose of the meeting. The chair will need to outline the decision or decisions to be made. The chair should set out the aim of the meeting, that is to reach a shared decision as to what is in the person’s best interests. It is probably unhelpful to ask the participants at this stage for their views on the person’s best interests as this might reinforce the participants’ current opinions and make it harder for them to consider new information and others’ opinions. The purpose of the meeting is not for any participant to persuade another of their viewpoint.
• Review of the requirements of the statutory checklist.
• Invitation to the participants to share information about the relevant factors. These could be recorded on a flip chart as risks and benefits of the alternatives under the headings of emotional, medical, social and welfare (see examples in Appendix 2).
• Discussion to enable the participants to pull the information together and weigh it up. The chair should encourage all present to participate and not allow anyone to dominate.
• Summary of information and factors to be considered.
• Best interests decision: It may be appropriate at this point to ask each participant what they consider, on the balance of probability, the best interests decision should be and why. Aim to reach agreement. If the decision maker cannot reach an agreement with the other participants, the reasons for this should be explained and recorded at the meeting and the chair should make the participants aware of the means they have to challenge the decision.

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).

10.1 When to apply to the Court of Protection

10.1.1 Health and welfare decisions

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.

10.1.2 Property and financial affairs decisions

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.

Treatment under Part IV of the Mental Health Act 1983

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. 

Research

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.

Click here to view/download Best Interests Case Study.