If a person has been assessed as lacking mental capacity, then best interests decision about their health and welfare may need to be made. Any action taken, or any decision made for such a person, must always be in their best interests as per principle 4 of the Mental Capacity Act 2005 (MCA 05).
The person who has to make a decision for someone lacking mental capacity is known as the ‘decision-maker’ and is normally the carer responsible for the day-to-day care of the person concerned, or a professional such as a doctor, nurse or social worker, where decisions about treatment, care arrangements or accommodation need to be made.
The MCA provides a non-exhaustive checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. However, it should always be remembered that there are a considerable number of things to think about when making a best interests decision for someone, as each person is an individual with their own unique circumstances. Some of the general factors that must be taken into consideration can be summarised as: -
- Do not discriminate.
- Do not make assumptions about someone’s best interests merely on the basis of a person’s age or appearance, condition or any aspect of their behaviour.
- Take into account all relevant circumstances
- If faced with a particularly difficult or contentious decision, it is recommended that a ‘balance sheet’ approach be adopted
- Consider if the person might regain capacity? If so, can the decision wait?
- Involve the individual as fully as possible
- Take into account the individual’s past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision
- Consult as far and as widely as possible, with the person's family and friends and other practitioners involved with them, such as legal advisors and holistic medical practitioners
A best interests decision should be recorded. Not only is this good practice, but given the evidence-based approach required by the MCA, carers, social workers and medical professionals should have an objective record in case their decision or decision-making processes are later challenged.
Decisions about health treatment
In some cases, a person who lacks capacity to decide on health treatment may have given power to someone else to make the health decision in question, under a Lasting Power of Attorney (LPA), for health and welfare. If this is the case, medical professionals should take the instruction of the Attorney unless they believe the Attorney is not acting in the best interests of the person concerned. In such a scenario, an application to the Court of Protection may be made for a decision.
If a person has not made an LPA for health and welfare, or has, but the LPA does not allow the Attorney to make a decision in the particular circumstances, the person concerned may have made an Advance Decision to Refuse Treatment, which may be operative. Medical professionals should check whether this is the case as they have a duty to comply with an Advance Decision to Refuse Treatment unless: -
- the person concerned lacked capacity to make the Advance Decision at the time it was made
- the Advance Decision is not relevant to the particular treatment (for example the Advance Decision refuses antibiotics for kidney infections, but a doctor wants to give antibiotics for an infected finger)
- the Advance Decision is to refuse life-sustaining treatment and does not have the requisite statement that even though the refusal may lead to the person dying it should still apply
- new treatments have come in which may have affected the person's decision had they known about them at the time
In the absence of an LPA for health and welfare and an Advance Decision, doctors, nurses, dentists and other health professionals are responsible for deciding whether people who lack capacity can make decisions about whether to agree to have treatment. If they find that the person is unable to do this, they then have to decide what would be in their best interests. However, it is important to remember that if a person does have the mental capacity to decide matters, they can also decide to refuse treatment.
When making a best interests decision, doctors and other medical professionals should always speak to any care staff involved with the person concerned, as they will know them well. They should also speak to family and friends to gain their views and listen to their knowledge about the person concerned.
Care staff and family and friends may be able, for example, to say:
- what the person's views and wishes may be, including things they may have said before they lost capacity
- which particular family need to be involved other than immediate family
- which close friends need to be involved
- how the person would cope with injections or other forms of treatment
- whether the person concerned ever displayed any strong views about particular medications or medical treatments
There is a duty on care staff to advise, when asked, on what would be best for the person concerned, given their knowledge of the individual, rather than what the staff member would want for themselves.
When serious medical treatment decisions have to be made in someone's best interests, and the person does not have family or friends who can be consulted as part of the best interests decision-making process, the person must be supported by a special kind of advocate: an Independent Mental Capacity Advocate (IMCA).
If a person resists treatment or medication given to them after a best interests decision has been made, to the extent that they need restraining, the best interests decision should be reconsidered and medical professionals should look for any alternative, or less restrictive options.
Decisions about where a person lives or stays
Decisions about staying at home, going into hospital or moving to a care home are often made for people who lack capacity. Such decisions can be made in a person's best interests by an Attorney acting under an LPA for health and welfare. However, if there is no LPA for health and welfare in place, a decision about such matters can be made by the local authority or an NHS trust.
In all cases, where possible, the person concerned must be supported to make such decisions themselves and a lot of care must be taken to check whether the person concerned can indeed make the decision before a decision in their best interests is made.
Usually social workers, (or care managers, (if the person is already in a care home), will assess the person's capacity to make the decision about moving into a home or going to a hospital or nursing home. If it is found that the person lacks the capacity to make a decision about the same, the local authority or NHS trust become the decision maker and are then able to make the decision about hospital admission or placement in a care service. A clinical commissioning group may make the decision if they are funding a nursing home placement.
People lacking capacity to make decisions about where they live, who don't have family or friends to represent them, must also be supported by an Independent Mental Capacity Advocate (IMCA). This is necessary if the person is likely to stay in hospital for more than 28 days or in a care home for more than eight weeks.
Important to know
The deliberate neglect or ill-treatment of people lacking capacity to make some decisions is now recognised as a crime under the Mental Capacity Act. This applies to all those who work with anyone who lacks capacity, including care staff and other professionals. The maximum sentence is five years in prison.