Who should be Consulted when working out someone’s Best Interests?

Wherever possible, the decision-maker must consult with other people close to the person who lacks mental capacity, about decisions that affect them and what might be in their best interests. This also applies to those involved in caring for them and who are interested in the person’s welfare.

Wherever possible, the decision-maker must take into account the views of the following people:

• 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 Lasting Power of Attorney (LPA); and
• a deputy appointed for that person by the Court of Protection.

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.

If there is no one who can speak about the person’s best interests, the person may be entitled to be allocated an Independent Mental Capacity Advocate (IMCA).

Decision makers must show they have thought carefully about who to speak to. Wherever possible, they must speak to the above people and take their views into account. Where they did not speak to a particular person, they must be able to explain why they did not. It is also good to carefully consider the views of family and carers, wherever possible.

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.