Implementing a Best Interests Decision

1. When to use this Guidance

This guidance should be used by any practitioner with responsibility for implementing a Best Interest decision when;

  1. A Best Interest decision has been made; and
  2. There is no on-going challenge to the decision that has been made.

If the Best Interests decision has been challenged you should not implement it until;

  1. The challenge is resolved satisfactorily by all parties; or
  2. The matter has been decided by the Court of Protection unless
  3. The decision relates to urgent medical treatment to save life; or
  4. The decision relates to urgent medical treatment to prevent serious harm; and
  5. You are satisfied that a valid Advance Decision to Refuse Treatment (ADRT) does not exist.

2. The Statutory Principles of the Mental Capacity Act

All of the statutory principles of the Mental Capacity Act must be applied when implementing the decision.

Click here to access guidance about the 5 statutory principles.

In particular you must;

  1. Not make assumptions about the person’s ability to be involved in deciding how the decision should be implemented;
  2. Permit, encourage and support the person to be involved;
  3. Apply the Best Interest checklist to ensure that decisions about implementation are made in the person’s Best Interests; and
  4. Be satisfied that the manner in which the decision is implemented is the least restrictive that it can possibly be upon the person’s Human Rights and freedoms.

3. Deciding how to Implement the Decision

The Best Interests principle

When planning the best way to implement the Best Interests decision you must have regard for the Best Interest principle, in the same way as you had regard for it when making the original decision.

This includes all of the following steps of the Best Interests checklist;

  1. Encourage participation of the person;
  2. Identify all relevant circumstances;
  3. Find out the person’s views;
  4. Avoid discrimination;
  5. Assess whether the person might regain capacity;
  6. Consult others;
  7. Avoid restricting the person’s rights;
  8. Take all of the above into account; and
  9. In the case of life sustaining medical treatment, make no assumptions about the quality of the person’s life and ensure that decisions are in no way motivated by a desire to bring about the person’s death.

You should refer to relevant sections of this resource as required for guidance about;

  1. Deciding how to apply the Best Interest principle;
  2. Involving and consulting the person;
  3. Consulting others;
  4. Exploring available options;
  5. Identifying relevant circumstances; and
  6. Weighing everything up to make a decision.

The least restrictive option

Whenever you make a decision, or implement a decision under the Mental Capacity Act you are required to achieve the required outcome by acting in a way that is least restrictive of the person’s rights and freedoms.

Click here to access guidance about implementing the decision in the least restrictive way.

Decisions made by the Court

If the Court of Protection has made the Best Interests decision they will have provided either;

  1. Clear direction about how to implement the decision;
  2. Some guidance about how the decision should be implemented; or
  3. Determined another person or body responsible for deciding how to implement the decision.

Clear direction from the Court

If the Court has provided clear direction you should;

  1. Implement the decision as per the Court’s instructions; and
  2. If problems with implementation occur, approach the Court for further guidance.

Some guidance from the Court

If the Court has provided some guidance you should;

  1. Have regard for the guidance of the Court; and
  2. Apply the Best Interests principle to decide how to implement the decision.

If problems with implementation occur you should;

  1. Have regard for the original guidance of the Court; and
  2. Apply the Best Interests principle to try and resolve any issues; and
  3. Consider the need to approach the Court for further guidance if problems cannot be resolved.

No direction or guidance from the Court

If the Court has not provided any direction or guidance about implementing the decision you should apply the Best Interests principle to;

  1. Decide how to implement the decision; and
  2. Try to resolve any issues that occur; and
  3. Only consider the need to approach the Court for guidance if issues cannot be resolved.

4. Implementing the Decision

When the decision should be implemented

The decision should be implemented when;

  1. The Best Interests principle has been applied; and
  2. The manner in which the decision is to be implemented is least restrictive of the person’s rights and freedoms; and
  3. Everyone involved is aware of their role in the implementation.

How the decision should be implemented

The decision should be implemented;

  1. As set out in any implementation action plan; or
  2. As agreed (if there is no formal plan); or
  3. As directed by the Court of Protection; or
  4. If the decision relates to routine care and treatment, as set out in any Care and Support Plan, Support Plan or Care Plan.

As Decision Maker it is your role to;

  1. Co-ordinate the process of implementation;
  2. Monitor that acts of implementation have taken place as agreed;
  3. Respond to any problems that occur; and
  4. Review the impact of any acts on the person.

Any changes to the implementation of the decision should be made in the same manner in which implementation was first agreed.

The use of an action plan

It may be useful to prepare a simple action plan when;

  1. There are a large number of implementation acts;
  2. There are a number of people involved in implementation; or
  3. There are a number of different timeframes.

An action plan will support you to;

  1. Co-ordinate the process of implementation;
  2. Monitor that acts of implementation have taken place as agreed; and
  3. Respond to any problems that may occur

Click here to access a tri.x tool that can be used as an action plan as required.

5. The Least Restrictive Option

The least restrictive option

Whenever you make a decision, or implement a decision under the Mental Capacity Act you are required to achieve the required outcome by acting in a way that is least restrictive of the person’s rights and freedoms.

For an option to be least restrictive it must;

  1. Impose the least restriction on the person’s Human Rights and freedoms; particularly
  2. Their article 5 rights (the right to liberty); and
  3. Their article 8 rights (the right to private and family life).
Need to know
The requirement to uphold Human Rights and freedoms is itself the 5th statutory principle of the Mental Capacity Act.

Deciding whether an act of implementation is the least restrictive option

In order to identify whether an act of implementation is the least restrictive option you must;

  1. Be aware of any likely impact on Human Rights; and
  2. Be satisfied that the act is the least restrictive way that the required outcome can be achieved.

You will need to consciously ask the following questions of yourself to be satisfied that you are acting in the least restrictive way;

  1. If the decision is implemented this way, what will be the likely impact on Human Rights?
  2. Have I explored all of the different ways of achieving what needs to be achieved?
  3. Is there a different way of doing things that is less restrictive?

Acts of implementation that deprive liberty

If the act of implementation is likely to deprive a person of their liberty you must;

  1. Be satisfied that this is the least restrictive option; and
  2. You should not act to implement the deprivation; until
  3. The proposed deprivation has been authorised through the Deprivation of Liberty Safeguards; or
  4. The proposed deprivation has been authorised by the Court of Protection.

Decisions that restricts the right to a private and family life

It is not lawful for anyone other than the Court to make a decision that restricts a person’s contact with their family, or with other persons they have a meaningful relationship with.

You must therefore only act to implement a decision to restrict a person’s Article 8 rights if the Court has made such a determination and advised you to do so.

6. A Contingency Plan

A contingency plan is a proactive agreement about the steps that will be taken to respond to any identified risk that may occur if any part of the implementation should fail.

You should consider making a contingency plan whenever there is evidence that;

  1. An element (or elements) of implementation are at risk of failing; and
  2. The impact on the person is likely to be significant; and
  3. An urgent response is likely to be required.

A contingency plan should set out;

  1. The risk;
  2. The likely impact for the person;
  3. The action that should be taken;
  4. The reasons that this is the preferred option.

As for all other aspects of implementation any contingency plan should be agreed with regard for;

  1. The 5 statutory principles of the Mental Capacity Act; including
  2. The Best Interests principle.

Where a contingency plan exists this should be shared with all persons responsible for implementing it in the event that it is required.

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