If a person does not have the mental capacity to make a decision, then any decision taken or act done for them must be in their best interests. It could be a day to day decision such as what to wear, or a complex healthcare decision such as what treatment to have. Whoever makes the decision, whether it is made by the family carer, paid carer, attorney, deputy or healthcare professional, best interests must always be considered.
So, what are best interests? The term best interest is not defined by the law, however, the law does set out steps to help us work out what is in a person’s best interests.
The starting point is that everyone is presumed to have the mental capacity to make decisions and should be supported to make decisions. A person may be able to make decisions about some things but not others.
For example, a person may not be able to make decisions about their finances but can decide where to live. The decision maker is likely to be the regular care giver for day to day decisions and acts such as personal care.
However, for more complex/major decisions a decision maker will be appointed. If an attorney or deputy has been appointed, and the decision is within their power, they will be the decision maker.
Step-by-step guide to deciding what is in a person’s best interests
The steps the decision maker must follow are:
• Does the person have capacity to make the decision and if not, will they regain capacity? If the person does not have the capacity to make the decision in question, and for complex and major decisions a formal capacity assessment may be required, then the decision should be made in their best interests. However, if the person may regain capacity and the decision can wait, it should be delayed.
• Has the person been encouraged and supported to participate in the decision? All possible steps should be taken to help and encourage a person to make a decision, for example, showing a person the different food or clothes options.
• What are the person’s views? The decision maker should also find out what the person’s views are including past and present wishes and feelings, beliefs and values and any other factors the person may have considered.
• What are the relevant circumstances? These are the factors that the person would have taken into account and other relevant circumstances.
• Consultation The decision maker should consult with anyone named by the person, those caring for them, appropriate people interested in their welfare and any attorney or deputy appointed.
• Avoid discrimination The decision must not be based on assumptions about a person’s age, appearance, condition or behaviour.
• Is this the least restrictive decision and/or act? The purpose of the decision must be considered and whether this can be achieved in a way that is less restrictive of the person’s rights and freedom.
Acts such as providing a personal care entering and clearing a person’s house could be considered civil wrongs or crimes. However, a person carrying out acts and decisions made in connection with a person’s care and treatment, will be protected from prosecution provided they have a reasonable belief that the person does not have capacity to consent, and they are acting in that person’s best interests.
If the attorney or deputy has the authorisation to make the decision, anyone who acts or makes the decision which conflicts with their decision will not have protection from liability.
There are some specific circumstances where there are exceptions to the best interests’ process such as when there is a valid Advanced Decision.
Sometimes, you may not agree with the decision maker’s decision and if the issue cannot be resolved, you may want to consider involving an advocate, getting a second opinion, a formal or informal best interests conference, mediation or using the organisation’s complaint process. If an agreement cannot be reached the Court of Protection may have to make the decision about what is in the person’s best interests.
Get expert advice on protecting the best interests of vulnerable people
Our Court of Protection team regularly advise people applying to be Court of Protection deputies and those already acting as deputies to help ensure their loved ones’ best interests are protected. We can help with the decision-making process, giving you confidence that you are doing the best for the person you are supporting and meeting your legal obligations as a Court of Protection deputy.
We can also act as Professional Deputies where required, with Wolferstans Partner Samantha Buckthought being one of only around 70 Panel Deputies in England and Wales authorised to act for clients in this capacity.
For personal advice on acting in the best interests of a vulnerable person or any other Court of Protection matters, please contact our Court of Protection team’s New Client Co-ordinator Daron Christian.
Client Services Co-ordinator