In the second of three linked articles, Andrew Alonzi provides a reminder for health and social care practitioners about the Mental Capacity Act 2005, implemented in 2007.
The fourth principle under the MCA 2005 says:
"Any act done or decision made on behalf of a person who lacks capacity must be done or made in their best interests."
Best interests decision-making is about finding the best option for the person who lacks capacity, identifying the optimum, not merely an acceptable, course.
There is no statutory definition of best interests. This is because a person’s best interests varies according to the circumstances. However, the MCA 2005 tells you what different factors you should take into account.
Who is the decision maker?
This is the person who has the power to make the decision being proposed, or to carry out an act (being the culmination of that decision) for or on behalf of a person who has been assessed as lacking capacity. For example, the best interests decision-maker for medical and related treatment (investigations and procedures, nursing care) is the person who is responsible for carrying out the particular treatment or procedure in question. This is the case even if the decision to deliver it was reached after consultation with other staff .
What should the decision maker take into account?
The decision maker needs to take into account all relevant circumstances when deciding whether a proposed decision or action is in a person’s best interests. These are those things which they are aware of and which it would be (objectively) reasonable to regard as relevant. The MCA 2005 provides a so-called ‘checklist’ of factors which may be relevant when working out a person’s best interests. It is better to think of the checklist as a process.
Regaining capacity, and participation
The decision maker should consider whether it is likely that the person will regain capacity to make the decision in question, at a later time. If this is likely, they must postpone the decision until then, to give the person every opportunity to make their own decision with support. In fact, the importance of this in the context of fluctuating capacity was highlighted in the case of Cheshire West and Chester Council v PWK (1 July 2019).
As far as reasonably practicable, the decision maker should permit and encourage the person to participate, or to improve their ability to participate, as fully as possible in making the decision affecting them. After all, it is one thing to be assessed as lacking capacity to make the decision in question. It is quite another not to be part of the decision that will be made on their behalf.
Wishes and feelings
A person’s wishes should be central to the best interests decision-making process. As far as they are able to, the decision maker should identify:
the person’s past and present wishes and feelings (including any relevant written advance statement made by them when they had capacity);
the beliefs and values that would be likely to influence their decision if they had capacity; and
other factors that the person would take into account, if they were able to do so (such as the impact of the decision on others).
The test of a person’s wishes is not an objective one, in the sense that it is not about establishing what a reasonable person would think . Rather, it is about considering matters from the person’s point of view. This is not, however, to suggest that a person’s wishes will be determinative of what is in a person’s best interests .
It can sometimes be difficult to ascertain a person’s wishes and, even when they can be ascertained, they sometimes change in view of the present circumstances. To address this, NICE Guidance from 2018 (1.5.6) says that health and social care services should have clear systems in place to obtain and record a person's wishes and feelings in relation to a relevant decision, as well as their values and beliefs, or any other factor that would be likely to influence such a decision. Services should have mechanisms in place to make these available in a timely way and to ensure that the person's personal history and personality is represented in the above.
Practitioners may also wish to distinguish between:
wishes that a person is known to have formed; and
wishes that a person would have formed, if they had capacity to do so .
Interests (as in best interests) are not just about a person’s self interest (in other words, what they would have done to benefit themselves if they had capacity). Wishes that are selfless and designed to benefit others rather than the person can also be relevant .
Consulting others
A decision maker should take into account the views of anyone the person has named as someone to consult in relation to the decision in question (or similar issues), anyone who cares for the person or who is involved in their welfare (such as near relatives and friends), any attorney under a lasting power of attorney, and any deputy appointed by the Court. The purpose of this is to gather information that would help the decision maker reach their best interests decision. It is not to ask those consulted what decision they would make.
For certain decisions, such as serious medical treatment or long-term accommodation moves, if there is no-one other than paid staff to consult, an Independent Mental Capacity Advocate (IMCA) must be consulted. This is an important safeguard. An IMCA is independent of the best interests decision maker, will support and represent the person who lacks capacity and provide information to help the decision maker decide what is in the person’s best interests. The decision maker must take into account the information provided by an IMCA.
Less restrictive outcome
The fifth principle under the MCA 2005 says:
"Before you carry out an act or make a decision, you must have regard to whether you can achieve the same purpose in a way that is less restrictive of the person's rights and freedom of action."
The proposed best interests decision must restricts the person’s rights and freedom of action as little as possible. Using less rather than least, the fifth principle is flexible enough to yield to the fourth principle (best interests) where necessary.
The decision maker must weigh all of these factors and determine the person’s best interests. From time to time, they may be faced with people who disagree about what is in the person's best interests. While the decision maker is under a duty to consult and take their views into account, it is ultimately the decision-maker's to decide what is in the best interests of the person.
Protection from liability
The MCA Code supports s.5 of the MCA 2005 by outlining circumstances under which practitioners are protected from liability when performing tasks for a person who lacks capacity. To receive protection, the practitioner must reasonably believe that the person lacks capacity to give permission for the action being proposed, which must also be in their best interests.
Section 5 covers a range of of actions in connection with a person’s care or treatment, such as providing nursing care, carrying out diagnostic examinations and tests, providing professional medical treatment, arranging and providing household services, community care services and helping someone to participate in education, social or leisure activities.
A good example of where this protection applies is civil battery. If the criteria above are fulfilled, healthcare staff will be protected from liability as if the person who lacks capacity to consent had consented to treatment, thus avoiding the need to obtain formal authority to act. However, it is worth remembering that s.5 does not provide a defence to a claim in negligence for failing to take a particular step, or failing to act where necessary. The person who lacks capacity still has the same rights in cases of negligence as someone who has consented to treatment.
Restraint
The MCA 2005 describes limitations to s.5 protection from liability, namely the inappropriate use of restraint. Any action intended to restrain a person who lacks capacity will not receive protection from liability (s.5) unless, in addition, the practitioner reasonably believes that restraint is necessary to prevent harm to the person who lacks capacity, and the amount or type of restraint used, and the amount of time it lasts, is a proportionate response to the likelihood and seriousness of harm.
The third and final article in this series will explore advance decisions and lasting powers of attorney under the MCA 2005.
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