We often hear that, if someone lacks mental capacity, decisions must be made in their best interests. But what does this really mean? Poppy Phipps, Head of Coodes’ Mental Health and Community Care team reflects on the question.
I think everyone would agree that any decisions made on behalf of someone who lacks mental capacity, should be based on their best interests. However, the Mental Capacity Act 2005, which is the major piece of legislation relating to this issue, does not define best interests.
So, if you are making decisions on behalf of a loved one, how can you be sure you are acting in their best interests? This could include making choices for them about major life steps should as moving into a care home or refusing or accepting medical treatment.
The Mental Capacity Act states that “any act done, or decision made, under this Act or on behalf of a person who lacks capacity must be done, or made, in his best interests”.
Although it does not define ‘best interests’, the legislation does provide guidance on what should be considered when making a decision for someone who lacks capacity. The emphasis is on putting the individual at the centre of any decision. There have also been many legal cases that have helped to define what best interests means in practice.
1. A person’s current wishes and feelings
Regardless of their age or disability, it is crucial to take into account the individual’s wishes and feelings about a decision. This means that the lowest risk option may not always the right one. Instead, it is about balancing wellbeing and safety.
For example, an elderly woman may wish to continue living at home, where she feels comfortable and has some independence, rather than going into residential care. Family members may, understandably, be concerned about her safety. However, this should not override her wishes and the people making the decision must try to see the situation from her point of view and respect her autonomy.
In this case, it may be that a balance can be struck, such as employing community carers to visit her at home three times a day.
2. Their values and beliefs
It is important to know about the individual’s values and belief system. This often means knowing about the person’s history before they lost capacity. That way, the decision can be made in line with their own life choices.
This involves considering what decision the individual would make if they could do so. This could include taking into account their appetite for risk, personality, religious beliefs and moral values. Importantly, the Mental Capacity Act states that making a decision in someone’s best interests means not basing it on their age, condition or appearance.
3. Any other circumstances that are relevant to the decision
No two decisions are the same. That’s why it is important to consider any other factors that might influence a decision at that particular time.
Although acting in someone’s best interests often involves understanding their life history, it is also important to consider the current circumstances. People’s needs change over time, perhaps because of the impact of a condition such as dementia, and this must be part of the decision-making process.
Important choices, such as where someone should live and the care they will receive, should not be taken by one person alone. These decisions should be made collaboratively and may need input from social workers and family members.
If the relevant people cannot come to an agreement, the decision will be passed onto the Court of Protection. We act for individuals who lack capacity, attorneys and family members in these cases. Getting specialist legal help can guide you through the decision-making process and, if necessary, through a court case.
Different people may have contrasting views on what is in someone’s best interests even though they all want the most positive outcome for the individual. This can make these cases very emotive and difficult for everyone involved. That is why it is important to get the support you need to ensure you are confident that you are doing the very best for the individual involved.
For advice on this issue, contact Poppy Phipps in Coodes Solicitors’ Mental Health and Community Care team on firstname.lastname@example.org.