Implementing a Best Interests Decision

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:

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

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 young person’s rights and freedoms.

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

• Be aware of any likely impact on Human Rights; and
• 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:

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

It is not lawful for anyone other than the Court to make a decision that restricts a young 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 young person’s Article 8 rights if the Court has made such a determination and advised you to do so.

What is in a young person’s Best Interests may change over time. This means that a decision that was made and implemented at the time that it was originally needed may not always remain in their Best Interests.

For example there may be changes in:

• The relevant circumstances;
• The young person’s present wishes and feelings; or
• The risks and benefits of the preferred option.

It is important to make sure that:

• Any decision remains in the young person’s Best Interests for as long as it is being implemented: and
• The way that the decision is being implemented remains the least restrictive way of achieving the desired outcome.

A review of a Best Interests decision should therefore take place:

• As part of any scheduled review activity; and
• Whenever there is evidence that the decision may no longer be in the young person’s Best Interests.

Whenever a review is carried out you should clearly record all of the following:

• The Best Interest decision that has been reviewed; or
• The acts of implementation that have been reviewed; and
• The reason for the review (e.g. a general review or because there has been a change); and
• The outcome of the review; and
• The rationale for the outcome.