The Best Interests Principle and the Role of the Decision Maker

1. The Best Interests Principle

The Best Interests principle

Best Interests is a statutory principle set out in section 4 of the Mental Capacity Act. It states that 'Any act done, or a decision made, under this Act or on behalf of a person who lacks capacity must be done, or made, in his best interests'.

Because the Best Interests principle is a statutory principle there is a legal requirement for all Decision Makers to apply it when making decisions on behalf of a person who lacks capacity.

The Best Interests decision

A Best Interests decision is the name given to any decision that has been made by applying the Best Interest principle.

Need to Know

It is important that the Best Interests principle under the Mental Capacity Act is not confused with the phrase 'best interests' that may appear in other contexts in society.

2. The Checklist for Applying the Best Interest Principle

The checklist

The Mental Capacity Act Code of Practice sets out the steps that you must take (or at least consider taking) in all cases to ensure that the Best Interests principle is applied when making decisions.

Only decisions that have been made using the checklist can be defined as Best Interest decisions under the Mental Capacity Act.

The steps that are taken, and the manner in which they are taken will vary depending on:

The specific circumstances and needs of the person;
The decision that is to be made; and
The urgency of the decision to be made.

As Decision Maker it is your responsibility to decide which steps should be taken and, where steps are not taken there should be clear recorded evidence to explain why it was not deemed appropriate or practicable to do so.

The steps are summarised below and further guidance about applying each step can also be found by clicking here.

Encourage participation of the person

You should do whatever is reasonably possible to permit and encourage the person who lacks capacity to take part, or to improve their ability to take part in making the decision.

Identify all relevant circumstances

You should try to identify all of the things that the person who lacks capacity would take into account if they were making the decision for themselves.

Find out the person's views

You should try to find out the views of the person who lacks capacity, including:

Their past wishes and feelings about the matter to be decided;
Their present wishes and feelings about the matter to be decided;
Any beliefs or values that would be likely to influence the decision in question (for example religious, cultural, moral or political beliefs); and
Any other factors that the person would be likely to consider if they were making the decision or acting for themselves.

Need to know

If a person is known to have fluctuating capacity you should try to ascertain (at a time when they have capacity) their thoughts, wishes and feelings in regard to decisions that should be taken during periods when they lack capacity. This will ensure that you can have full regard for this when making any Best Interest decision.

Avoid discrimination

You must not make assumptions about someone's Best Interests based solely on:

Their age;
Their appearance;
Their behaviour; or
A physical or mental health condition.

Assess whether the person might regain capacity

You should consider whether the person is likely to regain capacity and, if so whether the decision can be delayed.

Consult others

If it is practical and appropriate to do so, you should consult the following people:

Anyone who the person has asked you to consult with;
Anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues;
Anyone engaged in caring for the person (paid or unpaid);
Close relatives, friends or others who take an interest in the person's welfare;
Any donee of a Lasting Power of Attorney; or
Any Deputy appointed by the Court of Protection.

If there is a particular person that the incapacitated person has asked you not to consult with then you should not consult with that person.

An independent mental capacity advocate (IMCA) must be consulted when:

The decision relates to major medical treatment; or
The decision relates to where the person should live; and
There is no-one who fits any of the above categories; or
There is evidence that someone in the above category is not appropriate to be consulted.

For the purpose of applying the Best Interest principle, the aim of consulting is to:

Gather any information that the person being consulted may have about the wishes, feelings, beliefs and values of the person who lacks capacity; and
Ascertain any views that the person being consulted has about what may be in the person's best interests (and the reason for those views).

Avoid restricting the person's rights

You should ensure that a range of options are explored, to identify which is least restrictive of the person's rights.

Take all of this into account

You must weigh up all (not some) of the above factors when making a decision.

In cases where the decision relates to life sustaining treatment

Where the decision relates to life sustaining treatment you must ensure that:

Those people consulted or involved in the decision are in no way motivated to bring about the person's death; and
That no assumptions are made about the person's quality of life.

Additional steps

The Code of Practice is clear to point out that additional steps may be required and, as Decision Maker it is your responsibility to identify any further steps and ensure they are carried out before any decision is made.

3. The Role and Responsibilities of the Decision Maker

The role of the Decision Maker

The Decision Maker is responsible for applying the Best Interests principle and making the Best Interest Decision.

Who can act as a Decision Maker

Normally the person who has assessed capacity will act as the Decision Maker, unless:

They are not authorised to make the decision that needs to be made; or
There is a Deputy or Donee of a Lasting Power of Attorney authorised to make the decision; or
Another person may be better placed to make the decision; or
There may be a need for more than one Decision Maker.

Case Example 1

Jo is a social worker and has assessed Susan as lacking capacity to make a decision about entering into a sexual relationship with her boyfriend. Even though Jo has assessed Susan's capacity she is not able to act as a Decision Maker because she does not have the authority to make a Best Interest decision about sexual relations. This is a decision that can only be made by the Court of Protection, so Jo seeks the support of her line manager and makes an application to the Court to consider the matter.

Case Example 2

Brian works as a support worker in a care home. He would like to offer one of the residents, Joe the opportunity to go on holiday but is worried that Joe is no longer able to make decisions about such matters. Brian assesses Joe's capacity and is able to confirm that Brian is no longer able to make the decision. However, Brian does not feel that he is able to act as Decision Maker and seeks support from his line manager. A Decision is made that the manager will assume the role of Decision Maker and she proceeds to take appropriate steps to apply the Best Interests principle.

Case Example 3

Hardeep is a young person with a learning disability and complex health needs, who has been assessed as lacking capacity to make a decision about where to live by her social worker. Hardeep's Care and Support needs are funded jointly by health and social care and as such both organisations have a shared responsibility to ensure her needs are well met. A decision is therefore made that both the social worker and the community nurse will act as joint Decision Makers.

The responsibilities of the Decision Maker

The Decision Maker is responsible for:

Considering and deciding whether the person is likely to regain capacity and, if so whether the decision to be made can be delayed;
Deciding which steps in the checklist it is relevant and practicable to take so as to apply the Best Interest principle (and then carrying them out);
Deciding any other steps may need to be taken based upon the specific circumstances and decision to be made (and carrying them out);
Deciding who to consult (and consulting with those persons);
Deciding how best to involve the person who lacks capacity (and making appropriate arrangements to do so);
Deciding whether an IMCA should be appointed (and where appropriate, appointing an IMCA);
Preparing the person, and others for involvement;
Ensuring that all relevant information is available so as to explore the full range of options;
Managing any conflict or disagreement that may occur during the Best Interests process;
Weighing up all of the information gathered during the Best Interest process;
Making a Best Interest decision;
Ensuring the Best Interest decision is not discriminatory or based on assumptions;
Ensuring that the Best Interest decision is least restrictive;
Recording the Best Interest decision that has been made, and the reasons for it;
Deciding how to implement the Best Interest decision in the least restrictive way;
Identifying whether an application to the Court of Protection needs to be made (and following local processes to make the application).

Joint Decision Makers

If there is more than one Decision Maker an agreement must be reached about the role that each will play, to ensure that conflict is avoided and that the Best Interest principle is applied as required.

This includes agreeing:

Which steps and tasks will be carried out by which Decision Maker (and which will be carried our jointly);
How information will be shared between Decision Makers;
Who will be responsible for recording the decision that is made; and
How any conflict or disagreement about what is in the person's Best Interests will be managed.