Making a Best Interests Decision

1. Using this Guidance

This guidance should be used by any practitioner who, as Decision Maker is responsible for weighing up information to make a Best Interests decision. This guidance applies regardless of;

  1. The day to day role of the Decision Maker;
  2. The nature of the decision to be made;
  3. The location in which the decision is to be made;
  4. The urgency of the decision to be made; or
  5. Whether the decision is being made as part of a Best Interests case conference or not.

2. When to Make a Decision

Understanding what a Best Interests Decision is

A Best Interests decision is a decision made by applying the Best Interest principle, as set out in the Mental Capacity Act 2005.

A Best Interests decision is a decision made for and on behalf of a person who lacks capacity to make their own decision.

A Best Interest decision can only be made when the matter to be decided is a matter that it would normally be within the person’s power to decide (and not something that would normally be outside of their control).

A Best Interests decision should, wherever possible reflect the decision that the person lacking capacity would make for themselves.

When to make a decision

As Decision Maker, you should make a Best Interests decision when you have;

  1. Answered ‘No’ to the questions in the table below; and
  2. Gathered the following information; and
  3. Where relevant, taken the following steps.

Answered ‘no’ to the following questions

Question If you answer ‘yes’
Is the person likely to regain capacity, or develop the skills required to make the decision?

You should consider delaying the decision;

Or

You should consider making a short term or interim decision.

Click here to access guidance about making short term or interim decisions.

Can the decision be delayed until a time when the person is able to make it, or to allow for them to be supported making it?

You should delay the decision and provide the person with any support they may need to be able to make the decision.

Click here to access guidance about supporting a person to make their own decision.

Is there anyone else who is authorised to make the decision (a Deputy or Donee of a Lasting Power of Attorney)?

You must only make the decision when;

  1. Through necessity or unforeseen circumstances the Deputy or Donee is not able to make the decision; or
  2. In the case of Deputies the Court of Protection has granted permission for them to delegate the decision; or
  3. In the case of Donees the LPA specifies that the decision is one they can delegate.

Click here to access guidance about action you should take if a Deputy or Donee declines to make a decision that they are authorised to make.

In the case or serious medical treatment, is there an Advance Decision to Refuse Treatment?

If an ADRT exists the wishes of the person must be upheld unless;

  1. It has been withdrawn by the person; or
  2. The person has subsequently appointed a Donee of a Lasting Power of Attorney to make the decision (thus overruling the ADRT); or
  3. The person has not acted in a way that is consistent with the ADRT
Is the decision one that must be made by the Court? If you are not authorised to make the decision you must not make it, and must seek permission to bring the matter to the Court.

Gathered the following information

You must have gathered and understood the following information before making a decision;

  1. Where reasonably ascertainable, the past and present views, wishes, beliefs and values of the incapacitated person;
  2. The risks and benefits of the full range of available options;
  3. The views of everyone consulted about the past and present wishes and feelings of the incapacitated person;
  4. The views of everyone consulted about what may be in the Best Interests of the person; and
  5. Where involved, the views of any IMCA about all matters relating to the decision. 

Where relevant, taken the following steps

You must make sure that you have considered the following steps, and taken them when you deemed it relevant to do so;

  1. Encouraged and permitted the participation of the person;
  2. Consulted all those it was deemed relevant to consult;
  3. Explored all available options.

3. How to make a Decision

General guidance

You must refer to sections 4,5,6,7 and 8 of this guidance in all cases to ensure that any decision meets the statutory requirements of the Mental Capacity Act;

Best Interests decisions for routine care and treatment

Examples of Best Interests decisions relating to routine care and treatment include decisions about;

  1. How a person should be supported with personal care;
  2. How routine medication should be provided;
  3. How food or clothing choices should be made;
  4. How transfers should be carried out;
  5. Routine financial matters;
  6. Routine treatment, such as accessing the GP or dentist.

On the first occasion that a decision about routine care or treatment needs to be made the same process should be followed, as it would be for a major or specific decision.

Acts can then be carried out routinely to implement the original decision each time that the care or treatment is required, so long as the manner in which acts should be carried out is;

  1. Agreed through applying the Best Interests principle; and
  2. Clearly set out in the person’s Care and Support Plan, Care Plan or Support Plan.

The person carrying out the act/s to implement the decision on a routine basis must believe there have been no changes to;

  1. The relevant circumstances; or
  2. The person’s wishes and feelings; and
  3. That the decision that was made is still in the person’s Best Interests; and
  4. That the act being carried out to implement the decision is still the least restrictive way of doing so.

Where changes to the above have occurred, or may have occurred steps should be taken to;

  1. Formally review the original decision by applying the Best Interests principle; or
  2. Review the manner in which the acts implementing the decision are being carried out to make sure that this remains the least restrictive way to achieve the desired outcome.

4. Identifying the Relevant Circumstances

Relevant circumstances are the specific circumstances and factors relevant to the decision;

  1. That you are aware; or
  2. That you believe are relevant; and
  3. That the person wishes to be taken into account; or
  4. That it is reasonable to believe the person would want to be taken into account.

A Best Interest decision can only be made;

  1. After having regard to all of the ‘relevant circumstances’; and
  2. You must not disregard any relevant circumstances that the person has asked you to consider.

You must record;

  1. The circumstances that you have deemed relevant;
  2. Any circumstances that you have not deemed relevant; and
  3. The reasons for your decision.

No two people or decisions will have the same relevant circumstances, and the following are merely some examples of the kind of things that could be deemed a relevant circumstance;

  1. Any critical or specific wishes of the person;
  2. Any written statement of ADRT that exists;
  3. The past beliefs and values of the person;
  4. The financial circumstances of the person;
  5. The person’s relationships;
  6. The person’s care or treatment needs;
  7. The person’s future goals and plans;
  8. The person’s current living arrangements.
Case Example 1

A Best Interests decision needs to be made about major medical treatment for Simon following a motorcycle accident that has left him unconscious. The different options pose different recovery times, and there may be implications for Simon’s employment and longer term care needs.

Some of the relevant circumstances that the doctor making the decision considers are;

  1. Whether the decision can be delayed until such a time when Simon regains consciousness;
  2. The potential benefits and risks to Simon’s physical health from having the surgery and not having the surgery;
  3. The length of time it will take for Simon to recover, and whether Simon would be able to recuperate at home;
  4. The potential impact on those caring for him, if he were to recuperate at home;
  5. The potential impact on Simon if he were not able to recuperate at home;
  6. The likely impact on Simon’s ability to work in his current role, and what Simon’s wishes and feelings would be if this were restricted;
  7. The impact of limited work capabilities on Simon’s finances and family life;
  8. The likely impact on Simon’s ability to ride his motorcycle and his wishes and feelings about any restriction.
Case Example 2

Abbie has a substantial amount of money when she loses capacity to manage her finances. Her mother is a Deputy for Property and Affairs, appointed by the Court of Protection.

Abbie wants to use a large proportion of the money to visit her father for a few months. He lives in an apartment in America, and if she did visit Abbie’s mother would not be able to accompany her due to work commitments.

The following are the relevant circumstances that Abbie’s mother considers;

  1. Abbie’s wishes and feelings about the matter;
  2. The benefits and risks of Abbie visiting or not visiting her father in America;
  3. The care that Abbie may need while in America, whether/how this can be arranged and the cost implication to Abbie;
  4. The suitability of the apartment to meet Abbie’s needs; and
  5. The implications of using the money now on other goals and objectives that Abbie has set herself for the future.

The relevant circumstances should be considered at all stages of the decision making process, including;

  1. Deciding the weight given to the wishes and feelings of the person who lacks capacity;
  2. Deciding the weight given to the views, wishes and feelings of others;
  3. Weighing up information about risks and benefits of available options;
  4. Making a final Best Interest decision;
  5. Implementing any decision; and
  6. Reviewing any decision that is made.

5. Considering the Wishes and Feelings of the Person

The requirement to ascertain wishes and feelings

As part of preparing to make the decision you should have considered whether it was relevant to involve and consult with the person, for the purpose of ascertaining the following information;

  1. What their views are on any matters affecting the decision;
  2. What is important to them (the relevant factors); and
  3. What their preferred outcome may be.

Click here to access guidance as required about the process of consulting with the person.

You are required to use the information gathered through consultation to;

  1. Confirm the past and present wishes and feelings of the person; and
  2. Consider how to use this information to make a decision under Best Interests.

Wishes

Wishes

Wishes are the things that a person wants to happen (or not happen) in any given situation.

Wishes may be;

  1. Critical, where the person is adamant about what they want to happen and that there should be no deviation in any circumstances;
  2. Specific, setting out particular courses of action that the person would wish to take in certain situations;
  3. Experiential, related to things that the person enjoys (or wants to enjoy) about life in general.

Wishes may be logical or they may be illogical. They may be within the realm of possibility or they may not be.

Case Example 1: Critical Wish
Marsha experiences periods of fluctuating capacity in regards to her finances. She has prepared a written statement that sets out that, during periods of incapacity and regardless of her objection at the time, her bank card should be removed from her purse and given to her daughter for safekeeping.
Case Example 2: Specific wish

Gerry lacks capacity to make a decision about where to live. His wife is no longer able to provide care at home and a decision must be made about where it would be in Gerry’s Best Interests to live.

Gerry expresses a specific wish to stay at home, but he also says that if this is not possible he wants to stay near to his wife so that she can visit him each day.

Case Example 3: Experiential wish

Franco is unconscious and lacks capacity to make a decision about serious medical treatment. One treatment option has much higher risks than the other, but if successful could have more prolonged benefits.

It is not possible to find out what Franco’s wishes and feelings are about the medical treatment options, but he sent an email to his pregnant daughter shortly before becoming unwell and, from this it is clear that it is important to him that he meets his first grandchild.

Past wishes

Past wishes are the wishes that were expressed by the person before the time that they lost capacity to make the decision.

Evidence of past wishes can be provided;

  1. As an Advance Decision to Refuse Treatment (ADRT);
  2. As a written statement of other nature;
  3. As an email, text or other communication that can be verified as having been written by the person;
  4. Through communication by other means; or
  5. Through consultation with others who knew the person before they lacked capacity.
Need to know
You should specifically seek to identify the existence of any Advance Decision to Refuse Treatment or other written statement, and you must give weight to such documents.
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.

Present wishes

Present wishes are the wishes that are being expressed by the person at the time that the decision needs to be made. They include;

  1. What their views are on any matters affecting the decision;
  2. What is important to them (the relevant factors); and
  3. What their preferred outcome may be.

Present wishes;

  1. Have to be communicated by the person (it is not possible to ‘guess’ what they wish for); and
  2. Are gathered through direct consultation with the person; or
  3. If the person has chosen to communicate their wishes to another person, they can be gathered through consultation with that person.
Need to know

You cannot ascertain what the person wishes for without their direct involvement, as it is not possible to ‘guess’ this.

If the person has not been able to communicate their present wishes you should record;

  1. That you have not been able to identify their present wishes; and
  2. The reasons that you have not been able to do so.

Feelings

Feelings are the;

  1. Beliefs and values upon which decisions are made; and/or
  2. Emotional responses to the range of options available; and/or
  3. Emotional responses following a particular decision.

Past feelings

Past feelings are the values and beliefs that influenced the person’s decision making before they lacked capacity.

They can be gathered through;

  1. Written statements of the person; or
  2. Written evidence of previous decision making provided by others; or
  3. Verbal communication by the person; or
  4. Consultation with those people who knew the person before they lacked capacity.

Specifically, you must seek to understand;

  1. The beliefs and values that influenced the persons decision making;
  2. The strength of the person’s beliefs and values;
  3. Any other factors that the person considered important when making decisions;
  4. Anything that the person did not value or consider when making decisions.
Case Example
The Court is making a decision about the use of an incapacitated person’s money to make a significant charitable donation to the RSPCA. Through exploring the person’s past values and beliefs the Court identifies that the person did not like animals, and would not have made such a donation had he capacity. The Court therefore makes a decision that the donation would not be in his Best Interests.

Present feelings

Present feelings are;

  1. The current beliefs and values of the person;
  2. Other things that are important to the person now;
  3. How they feel about the available options; and
  4. What the person’s preferred option is.

There are a range of ways that the person can communicate their present feelings, including;

  1. Verbal communication;
  2. Communication through other means (e.g. pictures or sign language);
  3. Behaviour;
  4. Facial expressions; and
  5. Other gestures.
Need to know

Carers and others who know the person well can be helpful in supporting you to understand the meaning behind the incapacitated person’s communication about wishes and feelings when they;

  1. Know the person well;
  2. Are familiar with the person’s communication; and
  3. Are able to interpret their communication.

Giving weight to wishes and feelings

As Decision Maker it is your responsibility to;

  1. Decide how much weight to give to the person’s past and present wishes and feelings; but
  2. Wherever it is possible the decision that you make should reflect the decision that the person would be likely to make themselves; and as such
  3. Wherever possible you should give weight to the person’s own wishes and feelings.

Generally speaking, you should give more weight to the person’s wishes and feelings when;

  1. The person has written their past wishes and feelings down; and/or
  2. The person is closer to having capacity than lacking capacity; and/or
  3. The person’s wishes and feelings are logical and show some understanding; and/or
  4. The preferred outcome is possible; and/or
  5. The person feels very strongly about their views; and/or
  6. The person has expressed a consistent view; and/or
  7. The person has not provided differing views to others; and/or
  8. The person’s behaviour or actions are consistent with the view; and/or
  9. The person’s past wishes and feelings and current wishes and feelings remain unchanged; and/or
  10. Where the person has not communicated their own wishes and feelings, evidence has been provided to support the views of others.

If information about the person’s feelings has been communicated by gesture, facial expression or behaviour you should consider;

  1. The familiarity of the person that provided the information;
  2. How behaviour, facial expressions and gestures are normally used to indicate the person’s feelings;
  3. How easy it is to predict the person’s emotional response to a new situation.

The weight that you give to the person’s past and present wishes and feelings must not be influenced by;

  1. The nature of the decision to be made;
  2. Their age;
  3. Their appearance;
  4. Their behaviour; or
  5. The presence of a particular physical or mental health condition.

You must record;

  1. How you have given weight to the person’s past and present wishes and feelings;
  2. The factors that you considered when deciding the weight to give;
  3. If you did not give weight to the person’s wishes and feelings (or limited the weight you gave), your rationale for this decision.

Advance Decisions to Refuse Treatment

If the person has prepared an Advance Decision to Refuse Treatment you must give full weight to this, and uphold the original decision made by the person unless;

  1. It has been withdrawn by the person; or
  2. The person has subsequently appointed a Donee of a Lasting Power of Attorney to make the decision (thus overruling the ADRT); or
  3. The person has not acted in a way that is consistent with the ADRT.
Case Example
Since being diagnosed with Depression and making an ADRT refusing all life saving treatment Susan has become engaged, bought her first home and is planning to adopt a baby. She is now unconscious following an accident and without life sustaining treatment is likely to die. The clinician deems that her recent behaviour contradicts with the ADRT and that it is now likely that Susan would want to receive the treatment.

Where past and present wishes collide

When past and present wishes and feelings both exist there are 4 possible scenarios;

  1. The person wants the same now as they did in the past; or
  2. The person cannot communicate their current wishes and feelings, but their past wishes and feelings are clear; or
  3. There are some differences between the person’s past wishes and feelings and their current views; or
  4. There is a clear conflict between past and present views.

You should always endeavour to make a decision that is in line with the decision the person would have been likely to make for themselves when;

  1. The person wants the same now as they did in the past; or
  2. The person cannot communicate their current wishes and feelings, but their past wishes and feelings are clear.

If you decide not to give weight to the person’s wishes and feelings in either of these situations, you must;

  1. Have compelling reasons to justify your decision; and
  2. Record the reasons for not doing so in the formal report.

If the person’s present wishes and feelings are in direct conflict with their past wishes and feelings it is your responsibility to decide what weight to give to their different views.

Some of the things it may be useful to consider are;

  1. Whether the past views were critical views (see above);
  2. Whether there is evidence that the person has genuinely changed their wishes, beliefs or values;
  3. The likely outcome for the person if weight is given to past views;
  4. The likely outcome for the person if weight is given to current views.
In this situation there is often no ‘right’ or ‘wrong’ answer, and you should seek the support of your line manager as required.

6. Considering the Views of Others

Consulting with others

As part of preparing to make the decision, you should have consulted with anyone it was relevant to consult, to;

  1. Gather any information that the person being consulted may have about the past and present wishes, feelings, beliefs and values of the person who lacks capacity; and
  2. 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).

Click here to access guidance as required about the process of consulting with others.

Giving weight to the views of others

As Decision Maker, it is your responsibility to decide how much weight to give to the information provided by, and the views of others.

This is with one exception; if there is an IMCA involved you must have regard for their views in all respects.

You must record;

  1. How you have given weight to the information provided and views of others;
  2. The factors that you considered when deciding the weight to give;
  3. Where you decide not to give weight, your rationale for this decision.

Views about the past wishes and feelings of the incapacitated person

You should consider the weight that you will give the views of others when the person that lacks capacity;

  1. Has provided a view; and
  2. You have decided the weight that you will give to that view; or
  3. The person has not been able to provide a view.

In determining what weight to give the views of others you should consider whether;

  1. They knew the person before they lacked capacity;
  2. The nature of the relationship was such that the person is likely to have been privy to the information;
  3. There is any evidence to support what is being said;
  4. The views of others corroborates or refutes what is being said;
  5. The person appears to be motivated by a genuine interest in the person’s welfare; or
  6. They are an IMCA (in which case you must give weight to their views).

Views about the present wishes and feelings of the incapacitated person

You should consider the weight that you will give the views of others when the person that lacks capacity;

  1. Has provided a view; and
  2. You have decided the weight that you will give to that view; or
  3. The person has not been able to provide a view.

The views of others can be helpful in;

  1. Understanding views that are communicated through behaviour, gestures and facial expressions; and
  2. Identifying any inconsistencies in the person’s expressed wishes and feelings.
Case Example
Alex tells his social worker that he does not want to attend a certain day centre. He tells his support worker that he wants to go there, and he tells his mum that he doesn’t mind. Initially the social worker had given weight to the wishes and feelings that Alex had expressed to her, because his views were consistent and clear. However, after consulting with others she makes a decision to give less weight to Alex’s views on the basis that they are no longer consistent or clear.

In determining what weight to give the views of others you should consider;

  1. The nature of the relationship they have with the person;
  2. Whether there is any evidence to support what is being said;
  3. Whether the views of others corroborates or refutes what is being said;
  4. If person appears to be motivated by a genuine interest in the person’s welfare; or
  5. Whether they are an IMCA (in which case, you must give weight to their views).

Views about what is in Best Interests

Everyone that is consulted should be asked to;

  1. Provide a view about what may be in the person’s Best Interests; and
  2. Provide a rationale for their view.

In determining what weight to give to the views of others about what may be in the person’s Best Interests you should consider;

  1. The nature of the relationship they have with the person;
  2. Whether their view is based upon evidence, assumptions or risk adversity;
  3. If the person appears to be motivated by a genuine interest in the person’s welfare;
  4. When the view is a professional opinion, whether the person making the view is suitably qualified, experienced and expressing a view based on the relevant circumstances of the person; and
  5. Whether they are an IMCA (in which case, you must give weight to their views).
Need to know

Indicators that a family member or friend may not have a genuine interest in the person’s welfare include;

  1. Prioritising their own interests over that of the person’s; or
  2. Being unwilling to explore the full range of options.

Conflict between views

There is often going to be some degree of conflict between the views of the person, or anyone else consulted about;

  1. What may be in the person’s Best Interests;
  2. What the person’s past wishes and feelings were; or
  3. What the person’s present wishes and feelings are.

It is your responsibility to decide the weight that you give to different views, and how you use information to make a Best Interests decision, using this guidance and the support of your line manager.

It is important that you;

  1. Consider each view on its own merits;
  2. Record why you have given weight to particular views; and
  3. Record why you have not given weight to particular views.

Where a decision is being made as part of a Best Interests case conference these conflicts are likely to be aired in the presence of others.

Click here to access guidance about managing disagreement during a Best Interests case conference.

7. Considering the Risks and Benefits of Available Options

Exploring risks and benefits

As part of preparing to make the decision, you should have explored each available option in turn, setting out;

  1. The risks to the person;
  2. The benefits to the person;
  3. The likely impact of the risk or benefit on the person; and
  4. Options to reduce the level of likely risk.

Click here to access guidance as required about the process of identifying risks and benefits.

Using the information about risks and benefits

As Decision Maker, it is your responsibility to decide how to use information that has been gathered about the risks and benefits of the available options. However, you must be mindful that your approach to risk is;

  1. Evidence based; and
  2. Positive (not risk adverse).

The following should be clearly recorded;

  1. How you have considered risks and benefits when making a Decision;
  2. The weight that you have given to different risks and benefits;
  3. How you have considered any proposed risk reduction strategies; and
  4. How you have considered the views of the person and others.

Impact of risk/benefit versus number and likelihood

For each available option, any of the following could apply;

  1. A high number of risks/benefits;
  2. A low number of risks/benefits;
  3. A high likelihood of risk/benefit;
  4. A low likelihood of risk/benefit;
  5. Risks/benefits that are likely to have a severe impact on the person;
  6. Risks/benefits that are likely to have a minimal impact on the person;
  7. Risks/benefits that are likely to have a severe impact on others;
  8. Risk/benefit that is likely to have a minimal impact on others.

The number and likelihood of risks/benefits

The number of risks or benefits is not in itself an indicator that an available option may, or may not be in the person’s Best Interests.

You need to consider;

  1. Whether the information about risk/benefit is evidence based; and
  2. The likely impact of the risk/benefit for the person; and
  3. The likely impact of the risk/benefit for others; and
  4. The likely impact of any risk reduction strategies that have been proposed.

The likely impact of the risk/benefit

Likely impact is a much stronger benchmark to use when considering risks and benefits.

The impact of a risk or benefit can be related to;

  1. Physical or mental health;
  2. Feelings and perceived happiness;
  3. Finances;
  4. Personal Relationships;
  5. Safety;
  6. Dignity;
  7. Human Rights (specifically the deprivation of liberty)

The likely impact should never be generalised, and should be considered in the specific context of;

  1. The relevant circumstances (see above);
  2. The person’s wishes and preferences;
  3. What is important to them;
  4. Their beliefs and values; as well as
  5. Other factors perceived to be relevant by others.

A factor of magnetic importance

A factor of magnetic importance is an impact for the person that, if they were able to make their own decision would likely outweigh all other factors.

If a magnetic factor exists you should always give weight to this, and if you decide not to make a decision in line with it you must;

  1. Have compelling reasons to justify your decision; and
  2. Record the reasons for not doing so in the formal report.

Safety versus happiness

When there is a conflict between risk and benefit that is making a Best Interest decision challenging it can be useful to consider the following phrase, originally used by Justice Munby in 2010 and regularly referenced in the Court of Protection;

‘What good is it making someone safe, if it merely makes them miserable?’

Reducing Risk

You must consider what the likely impact of any proposed risk reduction strategies would be for;

  1. The relevant circumstances (see above);
  2. The level of each risk identified;
  3. The level of each benefit identified;
  4. The person’s wishes, values, beliefs and dignity;
  5. The person’s human rights (particularly their privacy and liberty).

You should also identify any other risk reduction strategies that may be helpful in;

  1. Reducing the level of risk;
  2. Increasing benefits to the person;
  3. Minimising restriction of the person’s human rights; or
  4. Making an option more in line with the person’s wishes, values and beliefs.

Risks to others

Sometimes the gravitational risks and benefits of a particular option will be the;

  1. Risks and benefits to vulnerable adults or children;
  2. Risks and benefits to staff; or
  3. Risks and benefits to the public.

It is appropriate to consider these risks and benefits when weighing everything up but the preferred option should not;

  1. Be decided by the risks and benefits to others; when
  2. These outweigh the risks and benefits to the person; or
  3. The proposed strategies to reduce risk place restrictions upon the person’s rights and freedoms.

In cases where the rights and safety of others appear to be taking precedent over the interests of the person, it is going to be challenging to make a decision that is truly in their Best Interests and you should;

  1. Seek the support of your line manager as required; and
  2. Consider the need to review any current placement or carer and treatment routine; or
  3. Consider the need to seek permission to apply to the Court of Protection to make a decision.

8. Weighing Everything Up and Making a Final Decision

Weighing up

‘Weighing up’ is the term given to the process of;

  1. Evaluating all of the relevant information; in order to
  2. Make an objective decision about what is in the persons Best Interests; based on
  3. The reasonable belief that it is so.

The information that must be weighed up

The following information should be used when weighing up;

  1. Information about the person’s past wishes and feelings, that you have given weight to;
  2. Information about the person’s current wishes and feelings, that you have given weight to;
  3. The views of others about what may be in the person’s Best Interests, that you have given weight to;
  4. The impact of available options for the person and relevant circumstances.

Other requirements when weighing up

The requirement to have regard to all relevant circumstances

All weighing up should be done with regard for the relevant circumstances of the person and their situation.

Click here to access guidance about identifying relevant circumstances.

The requirement to avoid discrimination

Any decision that you make must not be based solely upon;

  1. The person’s age;
  2. The person’s appearance;
  3. The person’s behaviour; or
  4. The presence of a particular physical or medical condition.

Neither should a decision be based upon;

  1. Your own values or beliefs; or
  2. The values or beliefs of others consulted.

The requirement to uphold Human rights and freedoms

The Mental Capacity Act is part of UK Human Rights legislation and any decision that is made must be the decision that is least restrictive of the person’s human rights, particularly;

  1. Their article 5 rights (the right to liberty); and
  2. 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.

It is possible for you to make a decision that is likely to deprive a person of their liberty but;

  1. You must not do so unless you are satisfied that this is the least restrictive option; and
  2. You should not implement the decision; 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.

It is not lawful for you to make a decision that restricts a person’s contact with their family, or with other persons they have a meaningful relationship with. These decisions must be made by the Court of Protection.

Reasonable belief

Reasonable belief is the threshold upon which Best Interest decisions are made.

Having a reasonable belief that a decision is in the person’s Best Interests means that;

  1. Having applied the statutory principles of the Mental Capacity Act; and
  2. Having applied the relevant steps of the Best Interests checklist; and
  3. Having considered and made best use of all the reasonably ascertainable information; you
  4. Believe from an objective position that the decision is in the person’s Best Interests.

If you have followed due process and the decision that you make is made in the reasonable belief that it is the right one, the Mental Capacity Act provides you with protection should any decision that you make be subject to legal challenge.

Support from others to make a decision

Making a Best Interests decision can be challenging. Often there are a range of options that could all be in the person’s Best Interests, or a range of views to consider.

If you are finding the process challenging it is appropriate to seek support from;

  1. Any IMCA that was involved;
  2. The Code of Practice;
  3. Your line manager, or a colleague with experience in making Best Interest decisions; or
  4. In consultation with your line manager, legal services.

A final checklist

When you feel ready to make a Best Interests decision, the use of a final checklist can help to;

  1. Ensure that all statutory requirements are met; and
  2. Develop your confidence when making Best Interests decisions.

Click here to access a tri.x Best Interests Decision Checklist tool that can be used as required for this purpose.

9. Recording the Decision and Notifying Others

When to record the decision

A formal record of the decision should be recorded as soon as possible after it has been made.

It is your responsibility to familiarise yourself with any specific local requirements in regards to;

  1. The timeframe for making a formal record; and
  2. The format for making a formal record.

Making a record of everyday decisions

On the first occasion that a decision about routine care or treatment is made the same process for recording the decision should be followed, as it would be for a major or specific decision.

This must include;

  1. How the decision was reached;
  2. What the reasons for reaching the decision were;
  3. Who was consulted to help work out Best Interests; and
  4. What particular factors were taken into account.

All written records of Best Interests decisions should be kept on the person’s file.

Where the implementation of a decision and the provision of the routine care and treatment require others to make regular choices in the person’s Best Interests, a more proportionate record of decision making can be made.

Examples of choices that may need to be made include choices about;

  1. What food to provide the person;
  2. The clothing that a person wears;
  3. How a person spends their time; or
  4. The items that a person routinely buys.

What must be recorded

As the Decision Maker it is your responsibility to decide the depth and level of information that is recorded. However, to meet the requirements of the Code of Practice this should be no less than;

  1. How the decision was reached;
  2. What the reasons for reaching the decision were;
  3. Who was consulted to help work out Best Interests; and
  4. What particular factors were taken into account.

If it has not been recorded in the person’s electronic file you should also record your rationale for;

  1. Involving (or not involving) the person who lacks capacity;
  2. Consulting (or not consulting) others;
  3. Giving weight to (or not giving weight to) the past and present wishes and feelings of the person;
  4. Giving weight to (or not giving weight to) the views of those consulted;
  5. The way in which you have considered the impact of any risks and benefits;
  6. How you decided which circumstances were relevant and which were not; and
  7. Any other information that you may be required to provide if your decision is challenged.

The depth of information recorded is likely to reflect the seriousness of the decision that has been made.

Notifying others of the decision

You should take steps to notify the following people of the decision that has been made;

  1. The person who lacks capacity;
  2. Any representative of the person, including any IMCA;
  3. Any Donee of a Lasting Power of Attorney or Deputy;
  4. Anyone that the person has asked you to notify; and
  5. Anyone else that you deem it relevant to notify, either with the person’s consent or in their Best Interests if they lack capacity to consent.

Providing a copy of the record

There is no legal requirement to provide a copy of the formal record of the Best Interests decision to anyone else. However, you should consider providing it to;

  1. Any joint Decision Maker;
  2. The person who lacks capacity;
  3. Any IMCA that is involved;
  4. The Court of Protection at their request; and
  5. Any other person you deem it relevant to receive a copy, with the consent of the person or in their Best Interests if they lack capacity to consent.

Challenges to your decision

Sometimes the person who lacks capacity, or any other person consulted may challenge the decision that you have made.

Click here to access guidance about how to respond to such a challenge.

Next steps

The next step after making a Best Interest decision is to;

  1. Consider how best to implement the decision; and
  2. Implement the decision.
Click here to access guidance about implementing the decision.

10. Specific Considerations for Life Sustaining Treatment

Using this guidance

This guidance should be used a supplementary guidance (and not comprehensive guidance) for those Clinicians or health professionals making a Best Interest decision in the context of life sustaining treatment.

It should be used alongside;

  1. All other areas of this Mental Capacity resource,
  2. The Mental Capacity Act Code of Practice;
  3. Any other professional guidance that exists in the area of life sustaining treatment; and
  4. Any local guidance or requirements.

The role of the Decision Maker

A Clinician or other health professional with relevant knowledge and experience in providing life sustaining treatment should act as Decision Maker unless;

  1. There is a Donee of a Lasting Power of Attorney authorised to make the decision; or
  2. There is a Deputy appointed by the Court of Protection authorised to make the decision.

If there is a Donee or a Deputy authorised to make the decision they should make it unless;

  1. Through necessity or unforeseen circumstances they are not able to make the decision; or
  2. In the case of Deputies the Court of Protection has granted permission for them to delegate the decision; or
  3. In the case of Donees the LPA specifies that the decision is one they can delegate.

Click here to access guidance about action you should take if a Deputy or Donee declines to make a decision that they are authorised to make.

If the Donee or Deputy is a family member or friend of the person who lacks capacity you must be satisfied that they;

  1. Will not make assumptions about the person’s quality of life; and
  2. Are in no way motivated to bring about their death.

If you have concerns about a Donee of Deputy’s ability to make the decision you should take steps to report concerns to the Office of the Public Guardian. The OPG is responsible for monitoring how Donees and Deputies make decisions, and it will investigate all complaints about the practice of registered Donees and Deputy’s.

Deciding whether treatment is life sustaining

Whether a treatment is life sustaining depends on both;

  1. The nature of the treatment; and
  2. The particular circumstances in which it is being prescribed.

It is the responsibility of an appropriate health professional to make a judgement about whether or not the treatment is life sustaining.

Case Example

If a patient with late stage cancer has developed an infection, antibiotics may be seen as a life sustaining course of treatment;

Whereas

If a patient with early stage cancer has developed the same infection, antibiotics are unlikely to be a life sustaining treatment.

Advance Decisions to Refuse Treatment

In cases of life sustaining treatment you must determine the existence of any valid Advance Decision to Refuse Treatment before making a decision under Best Interests.

If there is a valid ADRT that states out the current circumstances and the person’s wishes in the situation it must be upheld unless;

  1. It has been withdrawn by the person; or
  2. The person has subsequently appointed a Donee of a Lasting Power of Attorney to make the decision (thus overruling the ADRT); or
  3. The person has not acted in a way that is consistent with the ADRT.

Current Ethical Dilemma

There is currently some debate about how to apply a valid ADRT refusing treatment when the patient, who now lacks capacity, expresses a view to receive treatment at the point that it is needed.

There appear to be 2 options for Decision Makers;

  1. To interpret the person’s views as an act that is inconsistent with the ADRT,  thus invalidating it;
  2. To make a Best Interests decision, and balance the past and present wishes of the person to decide whether to provide treatment.

It is acknowledge that even if a decision were made that life sustaining treatment was not in the Best Interests of the person it be deemed unethical to deny treatment to a person who is asking for it at the point that it is needed.

It is hoped that further case law in this area will provide clarity, but at the moment the Decision Maker must;

  1. Make a decision about the validity of the ADRT; and
  2. Decide how to weigh up the past and present wishes of the person; and
  3. Decide whether to provide treatment; or
  4. Apply to the Court of Protection to make the decision.

Written statements of the person

If a valid ADRT does not exist, you must consider the existence of any other written statement by the person that sets out their wishes and feelings about the life sustaining treatment to be provided, sustained, withdrawn or withheld.

If a written statement exists you must;

  1. Give weight to views expressed in the written statement;
  2. Weigh up the views with all other relevant circumstances; and
  3. Wherever possible, make a decision that is line with the written statement; or
  4. Record a compelling rational for making a decision that is not in line with the written statement.

Specific considerations when consulting others

When deciding whom it is relevant to consult you must not;

  1. Consult; or
  2. Give weight to the views of;
  3. Anyone who is motivated by (or appears to be motivated by) a desire to bring about the death of the person who lacks capacity.

The requirement not to make assumptions about quality of life

When deciding what is in the person’s Best Interests you must not make any assumptions about the person’s quality of life.

This means you must not;

  1. Generalise based on the circumstances of previous patients;
  2. Make a judgement about quality of life that is based upon the person’s age, disability or other discriminatory factor;
  3. Have a view based on your own values and beliefs, or those of others about what quality of life is agreeable (or not).

Instead you must have regard to;

  1. The relevant circumstances of the case;
  2. The past and present wishes and feelings of the person; and
  3. Wherever possible, make a decision that is in line with the decision the person would have made themselves (if they had capacity).

The weight that should be given to options that sustain life

The Code of Practice states that in general terms;

  1. All reasonable steps which are in the person’s Best Interests should be taken to prolong life; and that
  2. There will only be a limited number of cases where treatment is futile, overly burdensome for the person or without prospect of recovery.

This is not meant to discourage Decision Makers from deciding that withdrawing or withholding life sustaining treatment when it is clearly in the person’s Best Interests, but rather to ensure that such a decision is not made lightly.

If a decision is made to withhold or withdraw life sustaining treatment and this decision is challenged by a family member, Donee, Deputy or representative of the person;

  1. The decision must not be implemented; and
  2. An application should be made to the Court of Protection to review the decision; 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.

Urgent decisions

Urgent decisions regarding life sustaining treatment should be managed in the same way as urgent decisions for all matters.

Click here to access guidance about making urgent decisions.

11. Short Term Decisions

You should consider making a short term Best Interests decision when there is a possibility that the person;

  1. Will regain mental capacity to make the decision for themselves; or
  2. Can be supported to be more involved in the decision.

Examples of situations when capacity can be regained include;

  1. When the cause can be treated, either by medication or other therapy;
  2. When capacity is likely to increase in time (for example when it has been caused by a factor such as drug or alcohol misuse, or sudden shock);
  3. When the person may learn a new skill or be subject to a new experience which will increase their understanding and ability to make the decision;
  4. If the person has fluctuating capacity, and it may be possible to make the decision at a time when they have capacity;
  5. If they are receiving support to improve communication, or to learn another method of communication.

Short term decisions should, wherever possible;

  1. Be reversible; and
  2. Not limit the number of available options for the long term decision.
Case Example
Jack lacks capacity to decide where to live after having a stroke. He currently lives in his own ground floor flat which is not deemed safe. There is a general view that Jack may regain capacity over the coming months, but this is not certain. Based on the relevant circumstances a decision is made that it is Jack’s Best Interests to move into a local specialist care home, where he can access physiotherapy every day. This is agreed as a short term decision and no plans are made to sell or adapt Jack’s flat. If Jack regains capacity he will be able to make his own decision about where to live, and his flat will remain a viable option to be explored.

Short term decisions should be;

  1. Recorded in the same way as other decisions;
  2. Time limited (and the timeframe must be clearly recorded);
  3. Monitored and reviewed within agreed timeframes; and
  4. Reviewed as soon as possible when changes in the person’s capacity occur.

12. Urgent Decisions

Put simply an urgent decision is any decision that cannot be delayed because doing so would pose a significant risks to the person’s;

  1. Life;
  2. Physical or mental health;
  3. Safety (including risk of abuse);
  4. Human Rights and freedoms.

If a decision is urgent there may not be time to;

  1. Carry out all steps of the Best Interests checklist; or
  2. Examine all possible factors; but
  3. The Best Interests principle still applies.

Where reasonably ascertainable you must specifically carry out the following steps before making a decision;

  1. Identify the relevant circumstances; and
  2. Ascertain the past and present wishes and feelings of the person; and
  3. Identify and explore all available options; and
  4. Weigh everything up to make an objective decision.

Whenever you decide not to take a particular step, your reasons for not doing so must be clearly recorded.

Case Example 1

Barbara has been admitted to hospital with a suspected stomach ulcer. She has Dementia and is deemed to lack capacity about her medical treatment.

While waiting for her family to arrive Barbara’s condition suddenly worsens and becomes life threatening. The A & E consultant decides that an urgent decision needs to be made.

It is not possible to consult with Barbara’s family due to the urgency, or to involve Barbara because she is in and out of consciousness.

The consultant seeks a second opinion from a colleague and proceeds to carry out emergency treatment in her Best Interests. She endeavours to explain to Barbara what is happening.

Case Example 2

Rachel is 17 and has a learning disability. She is staying in a care home as respite while her parents have a holiday. The day before they are scheduled to arrive home (and Rachel’s respite is due to end) she makes a serious disclosure against her father.

A decision needs to be made about whether or not Rachel should return home with her parents the following day. A Local Authority social worker assesses Rachel’s mental capacity and decides that she is not able to make this decision herself. During the assessment Rachel expresses a view that she would not want the abuse to happen again.

The social worker responsible for making the decision attempts to convene an urgent Best Interests case conference for the same day. She invites professionals who know Rachel well and her advocate, but they are all unable to attend.

The social worker feels that the decision cannot be delayed so she proceeds to make a decision based on;

  1. The likely impact of the risk to Rachel; and
  2. The present wishes of Rachel to prevent further abuse; and
  3. The views of carers at the respite home about Rachel’s likely feelings should her stay be extended.

Any urgent decision that you make must not be based solely upon;

  1. The person’s age;
  2. The person’s appearance;
  3. The person’s behaviour; or
  4. The presence of a particular physical or medical condition.

Neither should a decision be based upon;

  1. Your own values or beliefs; or
  2. The values or beliefs of others consulted; or
  3. In the case of life sustaining treatment, assumptions about the person’s quality of life.

You should consider making a short term decision when it is likely that the person;

  1. Will regain mental capacity to make the decision for themselves; or
  2. Can be supported to be more involved in the decision.

Click here to access guidance about making short term decisions.

13. Decisions that Deprive a Person of their Liberty

The requirement to uphold Human Rights and freedoms

The Mental Capacity Act is part of UK Human Rights legislation and any decision that is made must be the decision that is least restrictive of the person’s human rights, particularly;

  1. Their article 5 rights (the right to liberty); and
  2. 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.

Making a decision that deprives liberty

It is possible for you to make a decision that is likely to deprive a person of their liberty but;

  1. You must not do so unless you are satisfied that this is the least restrictive option; and
  2. You should not implement the decision; 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.

tri.x procedures