One of the key principles of the Mental Capacity Act 2005 (MCA) is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests. That is the same whether the person making the decision or acting on the person’s behalf is a family carer, a paid care worker, an attorney, a court appointed deputy, or a healthcare professional, and whether the decision is a more minor issue such as what to wear, or a more major issue such as whether to provide particular healthcare.
As long as these acts or decisions are in the best interests of the person who lacks capacity to make the decision for themselves, or to consent to acts concerned with their care or treatment, then the decision maker or carer will be protected from liability.
Working out what is in someone else’s best interests may be difﬁcult, and the Act requires people to follow certain steps to help them work out whether a particular act or decision is in a person’s best interests. In some cases, there may be disagreement about what someone’s best interests really are. As long as the person who acts or makes the decision has followed the steps to establish whether a person has capacity, and done everything they reasonably can to work out what someone’s best interests are, the law should protect them. If agreement cannot be reached between the commissioning body and the person or their family as to their place of care or residence or treatment in their best interests, the matter should be referred to the Court of Protection as the final arbiter.
The best interests principle underpins the MCA, that is:
‘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 best interests.’
The concept has been developed by the courts in cases relating to people who lack capacity to make speciﬁc decisions for themselves, mainly decisions concerned with the provision of medical treatment or social care.
This principle covers all aspects of ﬁnancial, personal welfare and healthcare decision-making and actions. It applies to anyone making decisions or acting under the provisions of the MCA, including:
However, the MCA’s ﬁrst key principle is that people must be assumed to have capacity to make a decision or act for themselves unless it is established that they lack it. That means that working out a person’s best interests is only relevant when that person has been assessed as lacking, or is reasonably believed to lack, capacity to make the decision in question or give consent to an act being done.
People with capacity are able to decide for themselves what they want to do. When they do this, they might choose an option that other people don’t think is in their best interests. That is their choice and does not, in itself, mean that they lack capacity to make those decisions. A person with capacity is entitled to make what others may consider to be an unwise decision.
There are two circumstances when the best interests principle will not apply. The ﬁrst is where someone has previously made an advance decision to refuse medical treatment while they had the capacity to do so (see Providing Care or Treatment for People who have Planned Ahead, Section 3, Advance Decision to Refuse Treatment). Their advance decision should be respected when they lack capacity, even if others think that the decision to refuse treatment is not in their best interests.
The second concerns the involvement in research, in certain circumstances, of someone lacking capacity to consent (see Research Involving People Who May Lack Capacity).
The term ‘best interests’ is not actually deﬁned in the MCA. This is because the MCA covers so many different types of decisions and actions, and so many different people and circumstances are affected by it.
Section 4 of the MCA explains how to work out the best interests of a person who lacks capacity to make a decision at the time it needs to be made. This section sets out a checklist of common factors that must always be considered by anyone who needs to decide what is in the best interests of a person who lacks capacity in any particular situation. This checklist is only the starting point: in many cases, extra factors will need to be considered.
When working out what is in the best interests of the person who lacks capacity to make a decision or act for themselves, decision makers must take into account all relevant factors that it would be reasonable to consider, not just those that they think are important. They must not act or make a decision based on what they would want to do if they were the person who lacked capacity. Weighing up the benefits and burdens may prove to be useful.
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