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Mental Capacity: Best Interest Decisions

The Mental Capacity Act is very clear that an assessment of a person’s capacity to make a decision shouldn’t be based simply upon their age, appearance, assumptions about their condition or any aspect of their behaviour. And of course it should be presumed that a person has capacity to make a decision unless it can be demonstrated that they lack capacity (which isn’t the same as saying the person has to prove they have capacity!).

Therefore, best interest decisions should only be made by professionals where a person lacks capacity and has no one appointed as Lasting Power of Attorney or Deputy for welfare decisions. I make this point having recently seen best interest decisions made for someone who clearly had capacity to make the decision for themselves.  A best interest decision was make because the professional thought that their decision was “too risky”.

When making a best interest decision, section 4 of the Mental Capacity Act says the person making the decision must consider;

  • whether it is likely that the person will at some time have capacity in relation to the matter in question. And if it appears likely that they will, when that is likely to be.

They must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

Where the determination relates to life-sustaining treatment they must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about their death.

They must consider, so far as is reasonably ascertainable;

  • The person’s past and present wishes and feelings (and, in particular, any relevant written statement made by them when they had capacity),
  • the beliefs and values that would be likely to influence their decision if they had capacity,
  • the other factors that they would be likely to consider if they were able to do so.

The person making the best interest decision must take into account, if it is practicable and appropriate to consult them, the views of;

  • anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
  • anyone engaged in caring for the person or interested in their welfare,
  • any donee of a lasting power of attorney granted by the person,
  • any deputy appointed for the person by the court.