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Best interests - who decides? Making decisions for adults who lack mental capacity

View profile for Sophie Holmes
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A new BBC drama ‘Best Interests’ aired recently, highlighting the difficulties that can be faced when a best interests dispute occurs and attracting debate as to who should have the final say in such decisions.

Sophie Holmes, solicitor in our Court of Protection team, provides a brief summary of the law relating to ‘best interests decision making’ under the Mental Capacity Act 2005 and the options available to families should a dispute arise.

What is ‘best interests decision making’?

Section 2 of the Mental Capacity Act 2005 (‘the Act’) states that ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’.

When a person lacks mental capacity and a decision needs to be made, it must be made by taking into account the factors set out at Section 4 of the Act. The term ‘best interests’ is not defined by the Act, but these factors outline what should be taken in account when making a decision on behalf of a vulnerable adult in their best interests. 

These factors are:

  1. The past and present wishes and feelings of the person – in particular, any written statement(s) which may have been made when they had mental capacity. This could also include any comments previously made to family or friends about what decision they would make/what they would want to happen if they lost mental capacity or could not make a decision (for example about what medical treatment to receive) at a later date.
  2. The person’s values and beliefs that would have been likely to influence their decision if they still had capacity; and
  3. Any other factors that the person would have considered if they were able to do so. This is a wide-reaching factor and enables anything relevant to the decision to be taken into account.  

If a person has been assessed as having capacity to make the decision, a best interests decision cannot be made for them – the individual has autonomy to make the decision themselves.

What is a best interests meeting, and when is one required?

Best interests meetings are convened for the purposes of making specific decisions on behalf of adults who lack the mental capacity to do so themselves.

Best interests meetings are often multidisciplinary, meaning that the input of several different parties is required before a decision can be reached. Attendees should include family members, professionals (such as doctors or social workers), attorneys/deputies and independent advocates, as well as the person assessed to lack mental capacity insofar as they are able to participate or express their views.

The purpose of the best interests meeting is to seek to reach agreement about what is in the person’s best interests and the decision to be made.

A best interests decision can be made in respect of a wide range of decisions that a person lacks mental capacity to make themselves. Examples of best interests decisions that commonly need to be made on behalf of vulnerable adults lacking capacity include:

  • Where the person should live;
  • Who they should have contact with;
  • What care they should receive; and
  • Whether they should have certain medical procedures (or whether medical treatment should be stopped or withdrawn as in the recent BBC drama).

The above list is not exhaustive, and some decisions are precluded from best interest decision making by s27 of the Act, such as consenting to marriage/divorce, or to sexual relations.

I have an enduring or lasting power of attorney for my loved one – why am I not the decision maker?

If an enduring or lasting power of attorney (LPA) was made and registered before the person lost mental capacity, then the attorney will be the decision-maker but only for decisions within the scope of their authority. The same applies for deputies appointed under a court order. However, if a dispute arises between professionals such as doctors or social workers about what is in the individual’s best interests, the attorney or deputy does not have the final say and an application must be made to the Court of Protection for a judge to make a decision (see below).

There are limitations on the scope of authority granted by LPAs and deputyship orders, and if you are unsure then it is important to seek advice.

What if there is a dispute?

If a best interests meeting is held and an agreement cannot be reached, then the responsible body (which could be the local authority, NHS trust or integrated care board) should make an application to the Court of Protection for a judge to decide.

If proceedings are issued in the Court of Protection, the responsible body should notify all parties with an interest in the person’s welfare (this includes family members/loved ones). If you are notified of an application, or joined as a party to the proceedings, then we would recommend seeking legal advice and representation as the court proceedings can very quickly become complex.

How we can help you

We have an expert team of solicitors who specialise in this complex and niche area of law, and who can offer a range of services from fixed fee advice appointments to full representation in court proceedings under the Mental Capacity Act 2005. The team can also offer legal aid funding in some circumstances, subject to eligibility.

If you need advice about a best interests dispute, please do not hesitate to contact us on 01616 966 229.