How to make best interests decisions under the Mental Capacity Act 2005

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In the second part of this podcast on best interests decision making, we will explore the elements of the “best interests checklist” and what you need to show to be protected for your decision. If you have not yet listened to part one, it is recommended that you listen to it before this part.

Starting with “relevant circumstances”

The starting point in the best interests checklist is to take into account all the issues that are most relevant to the decision in question, as well as the specific factors included in the checklist. The term “relevant circumstances” has a particular meaning and includes those circumstances of which you are aware, and which it would be reasonable to regard as relevant.

The relevant circumstances will vary from person to person. If the decision is about a person’s care, consider the person’s needs, the potential benefits and burdens of what is being proposed to meet those needs and any other factors relevant to making a decision, including the availability of less restrictive alternatives.

What about participation?

You have a duty to support the person to participate as fully as possible in the decision making process and in any action taken as a result of that decision. This reflects the empowering ethos of the Act.

This is very much a continuation of the second principle. After all, the second principle is about supporting a person to make a decision. Here, we are supporting them to be part of the decision.

Consult the person, explain what is happening and why a decision needs to be made. Use simple language to help the person understand the options you are considering. Ask her about the decision at a time and location where she feels most at ease and break information into easy to understand points.

What about postponement?

The checklist tells us to consider wether the person is likely to regain capacity in time to make her own decision. If so, and the decision can wait, then it must be postponed. However, in emergency situations, for example when urgent medical treatment is needed, it may not be possible to wait, in which case urgent treatment should never be delayed.

Sometimes, it is possible to take a longer term view. A person may be able to learn new skills over time which would permit her to make her own decision in the future. Alternatively, her capacity may fluctuate, may return over time (for example, when the result of sudden shock subsides) or the underlying cause may be capable of being treated.

What does the checklist say about “life-sustaining treatment”?

Whether treatment is life-sustaining is up to the doctor providing it. The Act says that a decision about whether life-sustaining treatment is in a person’s best interests must not be motivated by a desire to bring about her death, even if this is from a sense of compassion. However, this does not mean that a doctor is obliged to continue to provide life-sustaining treatment that is not in the person’s best interests, even where her death is foreseen.

There will be some cases where treatment is futile, perhaps overly burdensome to the person. It may be in a person’s best interests to withdraw or withhold life-sustaining treatment, even where this may result in death.

If one exists, a doctor must weigh a person’s written advance statement of wishes requesting particular medical treatment, such as artificial nutrition and hydration, against all other relevant factors in the checklist.

Are wishes and preferences important?

You need to consider a person’s past and present wishes and preferences as far as you can ascertain these in the available time. Your eventual decision must reflect the person’s wishes, which must be weigh alongside other relevant factors in the checklist. If your best interests decision departs from the person’s wishes, record the reason for this very clearly.

A person may have made a written advance statement of wishes and preferences when she had capacity, expressing her views about the kind of care she wishes to receive. Pay particular regard to this and remember that written statements carry more weight.

Remember that a person’s wishes and preferences may also be expressed orally or through behaviour (expressions of pleasure or distress, for example).

What about beliefs and values?

Beliefs and values also shape our decisions. A person’s beliefs and values can be found in her cultural background, religious beliefs, political or moral views as well as what you know about her past behaviour. Be sensitive to these.