What forms past and present wishes and feelings?
There is often confusion in respect of what factors would contribute towards a person’s wishes and feelings, below is a list of examples of factors which would form a person’s wishes and feelings:
- A written statement that provide information about an individual’s wishes of how they would like to be cared for
- The beliefs and values that would be likely to influence their decision if they had the capacity – evidence of this can be found by looking at an individual’s cultural background, religious beliefs, political and moral convictions or past behaviour or habits
It is also paramount that the decision maker considers whether it is likely that the person will regain capacity in relation to the matter in question, and if so when that is likely to be. If this is in the near future, and the decision does not need to made imminently, steps should be taken to delay the decision. Furthermore, the decision maker must, so far as reasonably practicable, encourage the person to participate, as fully as possible in any act done for him/her and any decision which will affect him/her.
What factors shouldn't be considered?
In considering what is in a person’s best interests it is important for the decision maker to ensure that their decision isn’t solely based on a person’s age, appearance, gender, sexuality, race, ethnic background or religion. Furthermore, Section 4 of the act also states that a decision should not merely be based on a person’s condition or an aspect of their behaviour, as these factors might lead to an unjustified assumptions about what might be in a person’s best interests.
Who should be consulted when making a best interests decision?
During the best interests decision process, the following people should be consulted for their views:
- Anyone engaged in caring for the person
- Close relatives, friends or others who take an interest in the persons welfare
- Any attorney appointed under a Lasting Power of Attorney made by the person
- For decisions where there is no one who fits into any of the above categories, an independent mental capacity advocate must be consulted
It is essential that the decision maker makes the appropriate enquiries to ascertain the views of those listed above.
Are there any exceptions to the best interests decisions process?
If a person has made an advance decision to refuse certain medical treatment whilst they had capacity and there is no reason to believe they subsequently changed their mind, the advance decision should be respected and upheld. Furthermore, Section 27 of the Mental Capacity Act 2005 provides an express list of decisions which cannot be made in a person’s best interests without applying to the court, these are as follows:
- Consenting to marriage
- Consenting to sexual relations
- Consenting to a decree of divorce
- Consenting to a child being placed for adoption by an adoption agency
- Consenting to the making of an adoption order
- Discharging parental responsibilities in matters not relating to a child's property
Once a decision maker has taken all of the necessary steps set out in the checklist within Section 4 of the act, they must employ what the court has described as a ‘balance sheet’ approach, which means weighing the likely advantages for the person against the likely disadvantages. Only if the ‘account’ is ‘relatively significantly in credit’, will the intervention be in the person’s best interests – this approach was set out in the case of Re A (Medical Treatment: Male Sterilisation) (2000).
What if there is a best interest dispute?
It may sometimes be the case that several people are involved in making decisions on behalf of someone and they may not always all agree on what is in the best interests of the client. It may be that all of the parties involved decide to have a ‘best interests meeting’ where a wide range of factors can be discussed with everyone present at the same time. Logistically, this isn’t always possible, but everyone who would have a say in the decisions that need making should still have their views considered, whether they are able to attend the best interests meeting or not.
In the event that a unanimous decision cannot be reached either amongst professionals or with family members, the appropriate responsible body, be that the local authority or the Clinical Commissioning Group (CCG), should make an application to the Court of Protection for a decision to be made by a judge.
Should you find yourself in a dispute in respect of a decision which is made in a loved one’s best interests, please do not hesitate to contact us on 01616 966 229 for assistance.