Making decisions in the best interests of adults (aged 18+) or young people (aged 16 – 17) who lack capacity for relevant decision-making
What does ‘best interests’ mean?
The MCA does not define the term ‘best interests.’ This is because so many different types of decisions and actions are covered by this concept, and so many different people and circumstances are affected by it. It applies whenever someone is facing a decision that needs making now and lacks capacity to make that decision, even after all possible help has been given to enable them to do so. It applies to all decisions and actions, not only health and social care but to financial decisions, or about deciding whether someone might be aiming to defraud them.
Care plans must demonstrate an unwavering commitment to person-centred decision-making. A series of identical care plans, that remain the same over a long time, is generally evidence of poor practice: we are all different and change over time.
The fourth principle of the MCA is called the best interests principle. It reads, ‘An act done, or a decision made, under this Act for, or on behalf of a person who lacks capacity must be done or made in his [meaning ‘their’] best interests.’ You will find it, with the other principles, in Section 1 of the MCA.
What is the best interests checklist, and how should we use it?
The MCA sets out in Section 4 how to work out the best interests of someone who is facing a decision and lacks capacity to make that decision. It does this by setting out a checklist of factors that must always be considered, except in an emergency. You can see the checklist in the MCA and find out more about it in the MCA Code of Practice, Chapter 5.
Records should show that you have looked at your own thinking to ensure you are not making assumptions based only on someone’s appearance, age, or diagnosis. You must also consider whether the person is likely to regain capacity and, if so, can this decision wait so that they can make it for themselves.
When working out what is in someone’s best interests, those who will act or make the decision must give as much weight as they can to the wishes and the feelings of the person, at the time of the decision and also, where relevant, when they had capacity in the past.
Take care to avoid the temptation to base your decision on what you think you would want for yourself if you were this person.
Minimum steps to comply with the checklist:
- Do all that is possible to permit and encourage the person to make this decision.
- If the person is aged 18 or above, check there is no legally binding advance planning decision in existence, such as a valid and applicable ADRT covering this decision (in which case the person has already made their decision) and that the person has not made and registered any lasting powers of attorney (LPA) giving someone else powers to make this decision. For more on ways, someone can plan for their future care, see above, ‘Advance Care Planning.’
- In finding out all you can about the person’s current and past wishes and feelings, make sure you include person-centred cultural, moral, political, and spiritual matters.
- Consult others, such as relatives or friends, who are likely to know more than any professionals about what is important to this person, their wishes, and their values.
- Always look for a way to carry out a decision that will be less restrictive of the person’s basic rights and freedoms. Encourage staff to think creatively.
- If you are involved in a decision about giving, or withdrawing or withholding, life-sustaining treatment, the decision-maker must not be motivated in any way by a desire to bring about the person’s death. They should not make assumptions about the person’s quality of life.
- Record that the elements of the checklist have been considered, together with any personal and idiosyncratic features of this person’s life. An example might be to build into the care plan access to the countryside and farm animals for an ex-farmer who is badly missing their former life.
Young People of 16 and 17
Until they reach 18, young people cannot use the forward planning mechanisms in the MCA to make an ADRT or create lasting powers of attorney (LPAs). They do have the right everyone else has to have their wishes and feelings put at the heart of how they are looked after and cared for. This means that, like anyone else, they should be encouraged to make a statement of wishes, which should be the basis of their care plan as far as possible. Today’s craze for a certain pop group, or fashion, or make-up, might not last very long. Similarly, young people change faster and more dramatically than when they are older; their care plans need to take into account this.
Be alert to areas where young people have been assessed as lacking capacity to make certain decisions, that appropriate empowerment and training are likely to enhance their decision-making. Encourage and support all such empowerment. People will gain self-esteem when living as much as possible like others of their age group, and this should be facilitated wherever possible.
Commissioners sometimes seem to lose sight of the specific needs of younger people, for example, their need to socialise with others their own age. Providers are well placed to identify ways the younger person can be supported to ‘act their age’ safely and enjoyably: see, for example, the campaigning charity Stay Up Late.
For more on the MCA and young people aged 16 and 17 who might lack mental capacity, see the CQC’s brief guide.
You would alert commissioners to the need for a translation service if required. In the same way, if someone is withdrawn, or lacking in family and friends, explore bringing in an advocate to support them in explaining their wishes and feelings. Younger people often benefit from advocacy beyond their families, who may be extremely protective of their vulnerable children. Create and maintain a good relationship with local advocacy services.
Statutory Advocacy (IMCA service)
Care providers may be consulted by an independent mental capacity advocate (IMCA) about a decision being made by a local authority or an NHS body, particularly if this person has no relatives or friends, apart from paid carers, to be consulted.
Involving an IMCA is a statutory requirement for certain decisions being made by a local authority or NHS body (but not by a care provider). For more on the rights and duties of an IMCA, see the MCA Code of Practice, Chapter 10.
How and when does the MCA provide protection from liability?
Actions and decisions in a care plan, like other health and care interventions, are generally carried out with the consent of the person. When someone lacks capacity to give that consent, the authority for personal care, or for medical treatment, comes from applying the MCA. See MCA section 5. This says that, provided you have followed the Act, it is as if the person had consented, with capacity, to what has been decided as in their best interests.
This does not, of course, protect health and care staff from being prosecuted if necessary for neglectful or abusive practice. There is a specific criminal offence under s.44 of the MCA, for both informal or paid carers who neglect or abuse people: see MCA s.44.
Also, see the Restriction and Restraint section below for extra conditions that apply if the person needs to be restricted or restrained, or their freedom limited, in their best interests.