One of the key principals of the Mental Capacity act is that any decision made is done in the person’s ‘best interests’
Making a ‘best interests’ decision can difficult and as such, the Mental Capacity Act 2005 Code of Practice has laid out some guiding principles that you should follow if you are responsible for making a best interest decision for someone who lacks capacity.
Do whatever is possible to permit and encourage the person who lacks capacity to improve their ability to take part in making the decision.
Identify all relevant circumstances
Try to identify all the things the person who lacks capacity would take into account if they had capacity and were making the decision.
Find out the persons views
Try to find out what the persons views are by taking into account –
- The person’s past and present wishes and feelings – this may have been expressed verbally or in writing or through behaviours and habits prior to the person lacking capacity
- The person’s beliefs either religious, cultural moral or political
- Any other decision the person may have taken into account prior to losing capacity
Not make any assumptions based about someone’s best interests simply on the basis of the person’s age, appearance, condition, or behaviour.
Assess whether the person might regain capacity
Some people may regain capacity such as someone who has undergone medical treatment; if so consider whether the decision can wait until then.
If the decision concerns life sustaining treatment
The person responsible for making the best interests decision should not be motivated by the desire to bring about the person’s death and should not make assumptions about the person’s quality of life.
Whenever possible, the person responsible for making the best interest decision should consult with as many people involved with the person as they may have information on the person’s wishes and feelings. People you should consult can be -
- Anyone who has previously named by the person as someone to be consulted in either the decision in question or on similar issues
- Anyone who is caring for the person
- Any person appointed under the Lasting Power of Attorney or Enduring Power of Attorney made by the person
- Any deputy appointed by the Court of Protection to make decision for the person.
Avoid restricting the person’s rights
Investigate whether there are other options that are less restrictive to the person’s rights
Take all these factors into account
Weigh up all these factors to help you make the ‘best interest’ decision on behalf of the person.