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Best interests and mental capacity

The Mental Capacity Act 2005 (MCA) is a defining piece of legislation designed to protect and empower vulnerable people who lack capacity to make their own decisions. The Act and Code of Practice should be followed at all times to ensure that vulnerable people are supported as far as possible when making decisions in their best interests.

The principles

Before any best interest decision is contemplated, everyone must first consider the core principles of the MCA as set out in Section 1. They are that:

  • A person must be assumed to have capacity unless it is established that they lack capacity;

  • A person is not to be treated as unable to make decisions unless all practicable steps to help them to do so have been taken without success;

  • A person is not to be treated as unable to make a decision merely because they make an unwise decision;

  • An act or decision under the MCA for, or on behalf of, a person who lacks capacity must be done, or made, in their best interests;

  • Before the act is done, or the decision is made, the decision makers must consider whether there is an alternative option that is less restrictive on the person’s rights and freedom of action.

If a decision is to be made in someone’s best interests (for example, a change of accommodation) and that person has been confirmed as lacking capacity for that specific decision, those making the decision must consider the best interest checklist under section 4 of the MCA.

The best interest “checklist”

The MCA does not tell someone what is in a person’s best interests but instead sets out what factors should be considered before reaching a best interest decision. The key factors are:

  • Someone making a best interest determination must not make it merely on the basis of a person’s age, appearance or condition, or an aspect of behaviour which lead others to make assumptions about what is in that person’s best interests;

  • The decision maker must consider all relevant circumstances and take the following steps:

    • consider whether it is likely that the person will at regain capacity in relation to the matter in question, and if it appears likely that they will, when that will be;

    • so far as practicable, encourage the person to participate as fully as possible in any act done for them and any decision affecting them;

    • they must also try to obtain:

      • The person’s past and present wishes and feelings;

      • The beliefs and values that would be likely to influence the person’s decision if they had capacity; and

      • If they were able to do so, what other factors would the person like considered.

    • The decision maker must take into account (if appropriate to consult them) the views of:

      • Anyone named by the person as someone to be consulted on the matter in question;

      • Anyone engaged in caring for the person or interested in their welfare;

      • The donee of a lasting power of attorney granted by the person, and

      • Any deputy appointed for the person.

These principles show that best interest decisions cannot be made without careful consideration of the person at the heart of the decision.

Decision makers are required to make active enquiries with the person themselves (if possible), family members and carers in order to try and establish how the person would have acted if they had capacity and, taking the views of the those close to the person into account, whether the decision would be in their best interests.

This can be difficult, but is required to safeguard a vulnerable person before a life changing decision is made. The Code of Practice recommends that when faced with a significant decision, a Best Interest Meeting (BIM) should be convened. This brings together all the key individuals involved in the person’s life and provides an open forum for their views to be discussed and considered.

Decision makers should be encouraged to speak openly, based on their own experiences with the person, weighing up the advantages and disadvantages of each possible option being considered. A successful BIM will adopt this ‘balance-sheet approach’ with all participants, evidencing which options were considered together with the views on the likely outcomes.

Only then, when all of these factors and options have been properly considered, taking into account the above principles can a best interest decision be made on behalf of someone lacking capacity.

At Moore Blatch we often represent family members at a Best Interest Meetings to ensure that their views are properly considered during what can be an emotional and difficult time.

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Nicholas Endean

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