One of the key points of the Mental Capacity Act 2005 (MCA) is that any act carried out or any decision made on behalf of a person who lacks mental capacity must be in that person’s best interests.
It applies to all aspects of ﬁnancial, personal welfare and healthcare decisions.
This 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 health or social care professional (see Decision Makers and Decision Making, Who can be a Decision Maker), and whether the decision is more of a minor issue such as what to wear, or more of a major issue such as whether to provide a particular type of medical treatment.
Working out what is in someone else’s best interests is not always easy. Certain steps must be followed to help the person making the decision (the decision maker) to work out whether a particular act or decision is in the person’s best interests.
In some cases, there may be disagreement about what someone’s best interests really are. As long as the decision maker has followed the correct steps to work out whether the person has capacity (see Assessing Mental Capacity), and has done everything they reasonably can to work out what the person’s best interests are, the law should protect them.
If agreement cannot be reached, the matter may be referred to the Court of Protection.
People must be assumed to have capacity to make decisions or act for themselves unless it can be established that they lack capacity.
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, necessarily , 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.
The term ‘best interests’ is not actually deﬁned in the MCA. This is because so many different types of decisions and actions and so many different people and circumstances are affected by it.
There is a checklist of factors that must always be considered by anyone who needs to decide what is in the best interests of a person who lacks capacity. This checklist is only the starting point: in many cases, extra factors will need to be considered. See Best Interests Checklist.
When working out what is in the best interests of the person who lacks capacity, the decision maker must take into account all relevant issues, 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. It must be about what the person who lacks mental capacity would want to happen.
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