The Mental Capacity Act 2005
- Best Interest Decisions
The Mental Capacity Act 2005 States in Section 1(5):
“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.”
In other words, if a patient lacks capacity to make a decision, it must be made on their behalf and in their best interests. Crucially, this is not simply their medical best interests but is determined by looking at the “patient’s medical, emotional and all other welfare issues.” This highlights the patient centred approach taken in Aintree v James (2015 UKSC). Despite this it is important to note that a patient’s wishes and preferences will not always be respected if it is not considered to be in their best interests as a whole.
The Mental Capacity Act 2005, in Section 4 of the Act, sets out all the factors that must be taken into account when making a best interests decision. Crucially in S4(6) the patient’s “will and preferences must be taken into account” and the Act emphasises that the decision maker should help the patient participate in the decision despite them lacking capacity to make the decision for themselves.
The key aspects of best interests decisions as set out in Section 4 of the Act are:
“(1)In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
(a)the person's age or appearance, or
(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3)He must consider—
(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b)if it appears likely that he will, when that is likely to be.
(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6)He must consider, so far as is reasonably ascertainable—
(a)the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b)the beliefs and values that would be likely to influence his decision if he had capacity, and
(c)the other factors that he would be likely to consider if he were able to do so.
(7)He must take into account, if it is practicable and appropriate to consult them, the views of—
(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b)anyone engaged in caring for the person or interested in his welfare,
(c)any donee of a lasting power of attorney granted by the person, and
(d)any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).”
The Mental Capacity Code of Conduct in Chapter 5 sets out an explanation of how to carry out a best interests decision in greater detail. It also summarises the key points in making a best interests decision on behalf of a patient which applies not only on a legal basis but also for practitioners applying the Act in practice:
“Encourage participation
• do whatever is possible to permit and encourage the person to take part, or to improve their ability to take part, in making the decision
Identify all relevant circumstances
• try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves
Find out the person’s views
• try to find out the views of the person who lacks capacity, including:
– the person’s past and present wishes and feelings
– these may have been expressed verbally, in writing or through behaviour or habits.
– any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question.
– any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves.
Avoid discrimination
• not make assumptions 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
• consider whether the person is likely to regain capacity (e.g. after receiving medical treatment). If so, can the decision wait until then?”
Best Interests decisions can be difficult to make in practice. It is important to note that they should reflect what is in the patient’s best interests which is not always the same as their clinical best interests. Furthermore, it is important to adopt a team approach and may involve working with other colleagues, caregivers for the patient and even their friends or family. If there is any concern it is important to contact your indemnity provider or seek advice from a senior colleague as well as to make sure you document the process clearly.
Resources:
The Mental Capacity Act 2005 - Section 4
The Mental Capacity Act 2005 Section 4 - Explanatory Notes
The Mental Capacity Act Explanatory Notes
https://www.39essex.com/mental-capacity-guidance-note-best-interests-april-2019/