Making a Best Interests Decision

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 to apply it when making decisions on behalf of a young person who lacks capacity.

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

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

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 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.

Who Can Be the Decision Maker

People who work in health and social care such as doctors, nurses, dentists, psychologists, occupational, speech and language therapists, social workers, residential and care managers, care staff (including domiciliary care workers), support workers (including people who work in supported accommodation) and any other health and social care workers can make decisions under the Mental Capacity Act.

Medical decisions are usually made by medical practitioners as this is their area of expertise.

The Decision Maker is responsible for:

• Considering and deciding whether the young 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), for example family, friends, foster carers, care provider etc;
• Deciding how best to involve the young person who lacks capacity (and making appropriate arrangements to do so);
• Deciding whether an Independent Mental Capacity Advocate (IMCA) should be appointed (and where appropriate, appointing an IMCA);
• Preparing the young 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).

A Best Interest decision should only be made when:

• A young person, who is over the age of 16 has been assessed as unable to make the decision for themselves (through a mental capacity assessment); and
• The decision to be made cannot wait; and
• The decision to be made is a decision that the Decision Maker is authorised to make; and
• There is no Deputy authorised to make the decision.

A range of decisions can be made without the need to approach the Court. These include:

• Everyday decisions, such as what to wear, what to eat or what to buy from the shop; and
• Major decisions, such as where to live and whether to undergo medical treatment.

There are some decisions that can never be made under the Mental Capacity Act. These are known as excluded decisions, and before proceeding you must be satisfied that the decision to be made is not an excluded decision.

Excluded decisions fall into 3 primary categories as follows:

• Decisions concerning family relationships, such as a young 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
• Mental Health Act matters; and
• Voting rights.

See The Court of Protection for guidance about the excluded decisions that must always be made by the Court.

Representation must be provided if:

• The young person requests it; or
• The young person is unable to be involved in the decision that is to be made; or
• The decision relates to providing, stopping or withholding serious medical treatment; or
• The decision relates to accommodation of the young person by the NHS for more than 28 days; or
• The decision relates to accommodation by the Local Authority for more than 8 weeks; or
• If the young person is 18 or over, the decision relates to Deprivation of Liberty Safeguards.

The Mental Capacity Act recognises a range of people whom may be suitable to represent the young person during the Best Interest process. These include:

• Family members;
• Friends;
• A Deputy appointed by the Court of Protection;
• Independent Mental Capacity Advocates (IMCA’s); and
• Independent Mental Health Advocates (IMHA’s) already supporting a young person under the Mental Health Act 1983.

Wherever possible you should support the appointment of a family member or friend as the young person’s representative when:

• The young person has asked it of you; or
• The young person is in agreement with the representation; or
• The young person is unable to agree to the appointment but there is evidence that it would be in their Best Interests; and
• The family member or friend is willing to represent the young person; and
• The family member or friend appears to have a genuine interest in the young person’s welfare; and
• In the case of decisions about life sustaining treatment, the family member or friend is not motivated (or does not appear to be motivated) by the young person’s death.

A family member or friend is not a suitable representative if they do not have a genuine interest in the young person’s welfare. Indicators of this include:

• Prioritisation of their own interests over that of the young person’s; or
• An unwillingness to explore the full range of options.

However, without evidence concerns alone are not lawful reasons to deem anyone unsuitable to represent the young person, and the Mental Capacity Act Code of Practice requires you to take reasonable steps to work with family members regardless of any conflicting views they may have.

Under the Mental Capacity Act you must appoint an IMCA whenever:

• The decision relates to providing, stopping or withholding serious medical treatment; or
• The decision relates to accommodation of the young person by the NHS for more than 28 days; or
• The decision relates to accommodation by the Local Authority for more than 8 weeks; or
• If the young person is 18 or over, the decision relates to Deprivation of Liberty Safeguards; and
• There is no Court appointed Deputy authorised to make the decision; and
• There is no suitable family member, friend or other person to represent the young person; or
• A suitable family member or friend is unwilling or feels unable to represent the young person.

An IMCA may also be appointed when:

• The young person has asked for advocacy support; and
• Decisions need to be made as part of an assessment or planning process; or
• To support a young person (from the age of 18) through the safeguarding process (regardless of whether there is already a suitable representative); or
• To support decisions about taking part in research.

There are circumstances set out in the Mental Capacity Act when you should not appoint an IMCA. These are as follows:

• Where there is a suitable family member or friend who is willing and able to represent the young person;
• When there is a Deputy appointed by the Court who is authorised to make the decision.

If a Deputy is able to make the decision, it may still be appropriate to appoint an advocate, but this cannot be an IMCA.

The Mental Capacity Act Code of Practice sets out as a checklist 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 are as follows:

• 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.

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

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

Where you decide not to take a particular step there should be clear recorded evidence to explain why it was not deemed appropriate or practicable to do so.

In all cases, wherever it is reasonable and practicable to do so steps should be taken to involve the young person who lacks capacity in the decision that is made.

The Code of Practice states that you must do whatever is possible to:

• Encourage the young person to be involved in the decision that is to be made; and
• Permit the young person to be involved in the decision that is to be made.

The Act requires the decision-maker to consider, as far as they are ‘reasonably ascertainable’, the young person’s wishes and feelings, and their beliefs and values and other factors which would be likely to influence their decision if they had capacity.

'Reasonably ascertainable' means the information that can be gathered in the time that is available. What is available in an emergency will be different to what is available in other situations.

You must clearly record:

• The manner in which you have consulted or involved the young person in the decision;
• The views, wishes, beliefs and values expressed by the young person;
• Information about what is important to them (now and in the future); and
• Their preferred outcome.

If you decide not to consult or involve the young person, or to limit their involvement you must:

• Ensure that they are represented by a suitable person or an advocate; and
• Provide clear written evidence of your reasoning.

If the young person is not readily able to be consulted or involved in the decision you are required to do whatever is reasonably possible to improve their ability to do so.

The following are just some of the things that you should consider doing to improve the young person’s ability to participate:

• Use simple language and/or visual aids to support the young person to understand the options;
• Seek their views at a time and location where they feel relaxed and at ease;
• Break information down into easy-to-understand points;
• Use specialist interpreters to communicate;
• Ask carers or friends to communicate with the young person to establish their views, rather than doing it yourself;
• Appoint an advocate to support and represent the young person;
• Consider delaying the decision to allow the young person time to process the information provided to them, or to talk through the options with others;
• Consider delaying the decision to allow the young person to develop their communication skills; and
• Hold any Best Interest case conference at a time and place that best suits the young person and facilitates their involvement.

Many of the steps that should be taken to support a young person’s involvement during the Best Interests process are the same as those that should be taken if you were supporting them to make their own decision.

You should clearly record the steps that you have taken to support the young person to be consulted and involved in the decision.

Wherever possible, in general you should always consult the following people:

• Anyone who the young person has asked you to consult with;
• Anyone previously named by the young person as someone to be consulted on either the decision in question or on similar issues;
• Anyone engaged in caring for the young person (paid or unpaid);
• Parents, close relatives, friends or others who take an interest in the young person’s welfare;
• Any Deputy appointed by the Court of Protection; or
• If the person is 18 or over, any donee of a Lasting Power of Attorney.

If an IMCA or other advocate has been appointed you must consult with them and have regard for their views before making a decision about what is in the young person’s Best Interests.

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

The decision-maker in medical treatment decisions is a medical professional.

In the case of decisions about life sustaining treatment the medical professional responsible for making a decision should not consult with any person who is motivated by (or appears to be motivated by) the death of the incapacitated young person.

For the purpose of applying the Best Interest principle, the aim of consulting is very specific. It is purely to:

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

The Best Interests case conference (also known as the Best Interests meeting) is a way of applying the Best Interests principle in a co-ordinated and structured way. It is a formal meeting (or series of meetings) that involves:

• The Decision Maker (whose role it is to co-ordinate and chair the meeting);
• All persons being consulted; or
• Some of the persons being consulted (with the views of those not present being shared by the Decision Maker); and
• The young person lacking capacity; or
• The representative of the young person lacking capacity. 

The purpose of the Best Interests case conference is to:

• Hear the views of everyone present;
• Share the views of those persons consulted but not present;
• Provide relevant information about the available options;
• Share ideas about possible options;
• Weigh up the benefits and risks of all the available options;
• Provide opportunities to challenge and question;
• Support the Decision Maker to make a decision;
• Support those person’s present to understand how the decision has been made; and
• When the decision is made, agree how best to implement it in the least restrictive way.

There is no requirement under the Mental Capacity Act to arrange a Best Interests case conference during any Best Interests decision making process.

Arranging a Best Interests case conference can be particularly helpful when:

• The decision is complex or likely to have serious consequences for the young person; and
• There is time to arrange a meeting; and
• A significant number of people with a range of views are consulted; or
• There is likely to be some conflict or challenge about what is in the young person’s Best Interests.

All Best Interest decisions must have regard for:

• The relevant circumstances;
• The wishes and feelings of the young person (past and present);
• The views of others consulted; and
• The identified risks and benefits of available options.

Before making a decision you must identify and have regard for the specific circumstances and factors relevant to the decision:

• That you are aware; or
• That you believe are relevant; and
• That the young person wishes to be taken into account; or
• That it is reasonable to believe the young person would want to be taken into account.

A Best Interest decision can only be made:

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

No two young 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:

• Any critical or specific wishes of the young person;
• Any written statement of wishes that exists;
• The past beliefs and values of the young person;
• The financial circumstances of the young person;
• The young person’s relationships;
• The young person’s care or treatment needs;
• The young person’s future goals and plans;
• The young person’s current living arrangements.

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

They include:

• What their views are on any matters affecting the decision;
• What is important to them (the relevant factors);
• What their preferred outcome may be;
• What were their previous wishes and why have these changed?

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

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

It is important that you:

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

You need to consider:

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

In order to identify whether an available option is the least restrictive of the young person’s rights you must:

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

'Weighing up' is the term given to the process of:

• Evaluating all of the relevant information; in order to
• Make an objective decision about what is in the young person’s Best Interests; based on
• The reasonable belief that it is so.

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

• Having applied the statutory principles of the Mental Capacity Act; and
• Having applied the relevant steps of the Best Interests checklist; and
• Having considered and made best use of all the reasonably ascertainable information; you
• Believe from an objective position that the decision is in the young 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.

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

To meet the requirements of the Code of Practice this record must include:

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

The depth of information recorded should reflect the seriousness of the decision that has been made.

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

• The young person who lacks capacity;
• Any representative of the young person, including any IMCA;
• Any Deputy;
• Where the young person is 18 or over, any Donee of a Lasting Power of Attorney;
• Anyone that the young person has asked you to notify; and
• Anyone else that you deem it relevant to notify, either with the young person’s consent or in their Best Interests if they lack capacity to consent.

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:

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

An urgent decision is any decision that cannot be delayed because doing so would pose a significant risk to the young person’s:

• Life;
• Physical or mental health;
• Safety (including risk of abuse);
• Human Rights and freedoms.

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

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

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

• Identify the relevant circumstances; and
• Ascertain the past and present wishes and feelings of the young person; and
• Identify and explore all available options; and
• 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.

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

• You must not do so unless you are satisfied that this is the least restrictive option; and
• You should not implement the decision; until
• The proposed deprivation has been authorised by the Court of Protection.