Best Interests Decision Making

Why might it be of interest?

The Mental Capacity Act is not complicated in essence but the application of it can become complicated.  We have another document about the Mental Capacity Act as well as guides from Mencap and hft.  This one is specifically about the Best Interests decision making process.

The best interests process is relevant when a young person does not have capacity to make a decision and there is no power of attorney or deputyship in place for another person to make that decision for them.

This is going to be a common way that decisions are made for our young people who lack capacity to make decisions so it is important for parents to understand the process and their part in it.

This is a quick overview of the best interests process.

What is mental capacity?

Mental capacity refers to a person’s ability to make a particular decision, at a specific time.  A young person may have capacity to make some decisions but not others.

There must be clarity over what the particular decision needing to be made actually is and when it has to be made.

For example, saying someone cannot manage money is rather vague.  Does this mean they don’t understand enough to pay for a coffee and bus fare or does it mean they can’t manage a portfolio of investments!

Who makes decisions?

There are a number of people who might make decisions for those who lack capacity, including:

• Parent carers
• Family members
• Other carers
• Legal representatives – solicitor, PoA, deputy
• Healthcare professionals and others, eg:
  • Teachers
  • Advocates
  • Social care

 What decisions?

The decision might be relatively minor, such as the range of activities the person is due to undertake that day or where the person might go on holiday.

At the other end of the scale, decisions may include serious surgical procedures and issues regarding sexual activity, relationships or contraception.

There are some decisions that no-one can take on behalf of another person (eg consenting to sex or marriage).

Decisions around the minor activities are likely to be made by the young person’s carers or parents – people who interact with and support them on a day to day basis, for example.  Major decisions are more likely to include professionals, doctors or consultants, social workers, for example.

Best Interests

A best interests process is used when a young person is deemed not to have capacity to make the decision.  Capacity is assessed because there is doubt about capacity and there is a decision to be made.

There is no definition of ‘best interests’ as there are so many different circumstances and types of decisions but all best interest decisions should take these into consideration:

• Encourage participation
  • What steps have been taken to enable the young person to be involved in the decision making
• Identify all relevant circumstances
• Understand the person’s views:
  • What have past decisions indicated as a preference?
  • Current preferences
• No assumptions should be made about the person’s quality of life
• Consult with others
  • Consultation should be wide and include everyone who might have information or an interest in this decision
  • Many people may have a part of the picture
  • Parents often have the whole – or at least a fuller – picture
• Avoid restricting the person’s rights
  • The final decision should always be the least restrictive option
  • This may not be in actual fact the least restrictive option but it will be the least restrictive option that meets the need
• Encompass medical, emotional and all welfare issues

A balance sheet approach might be helpful to weigh up the pros and cons, potential outcomes and consequences of those outcomes.

The MCA is concerned with the decision making rather than the outcome.  But decision makers will be mindful of the implications of the outcome.

For a person to be considered to have capacity to make a decision all of the following must be met:

• Understanding the information
• Retaining the information
• Weighing up the information
• Communicating the decision

Consider recording the decision making process:

• What practical steps were taken to support and involve the young person
• Who was involved
• Findings at each stage

• As a parent you would expect to be included in any best interests process and your views taken into account
• Do not expect conflict in a best interests decision making process but also understand that the final decision may not be yours
  • Especially with medical decisions it is more likely that it will be a medical professional who will make the final decision