‘Best interests’ decision-making – are you equipped?

 In Elderly/Vulnerable Client, Gill's Blog

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Many practitioners act as attorneys and also Deputies. Part of these roles involves making decisions for the patient. Some people do not have these tools in place and even if they do day-to-day decisions still need to be made by someone who follows the scheme of the Mental Capacity Act 2005 (MCA 2005). Here are some thoughts on how to approach ‘best interests’ decision-making.

A reminder of the 5 statutory principles under MCA 2005

  1. A person must be assumed to have capacity unless it is established that he lacks capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  5. Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Does P lack capacity to make the decision?

S.2 MCA 2005:

“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.”

S.2 also expressly states that it does not matter whether the impairment or disturbance is permanent or temporary. Any question of whether a person lacks capacity must be decided on the balance of probabilities. The MCA 2005 will only apply if the functional element is satisfied.

A person may be unable to make a decision for themselves if, for example, someone else is exercising undue influence over them, rather than because they are suffering from an impairment of their brain. In such a case the MCA would not apply.

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S.3 MCA 2005 goes on to explore understanding, retention of information long enough to make a decision.

The prevailing ethos of the MCA 2005 is to weigh and balance the many competing factors that illuminate decision-making. There is only one presumption under the MCA 2005 – that a person must be assumed to have capacity unless it is established that he lacks capacity. Hence, autonomy is at the heart of the Act.

P’s wishes and feelings and other factors contemplated by s.4 MCA 2005 are required to be considered where they can be reasonably ascertained. None is determinative. Where there is found to be insufficient capacity to make the particular decision then the MCA indicates that another person must do what is best for that person.

The Committee Report that led to the Bill emphasised that ‘best interests’ is a very important part of what is now the MCA 2005. ‘Best interests’ is one of the Act’s two fundamental concepts.

The checklist in s.4 MCA 2005

As there is such a wide range of decisions and actions covered by the MCA 2005 the concept of ‘best interests’ is not defined. Instead, there is a checklist of things people need to think about to make sure a decision is made in a person’s best interests. These are contained in section 4 of the MCA 2005 and Chapter 5 of the Code of Practice.

They include ascertaining the person’s past and present wishes and feelings, beliefs and values.

The views of anyone named by the person to be consulted on the matter should, if it is practicable, be obtained and anyone engaged in caring for the person or interested in his welfare, along with any donee of a lasting power of attorney or any deputy appointed by the court.

The duties imposed by subsections (1) to (7) of s.4 also apply in relation to the exercise of any powers which –

  1. are exercisable under a lasting power of attorney, or
  2. are exercisable by a person under this Act where he reasonably believes that another person lacks capacity

Does P lack capacity to make the decision?

The MCA Code of Practice at 4.11 to 4.13 suggests that the test should be broken down into two parts:

  1. Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? (the ‘diagnostic’ element) and
  2. Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? (the ‘functional’ element)

Examples of an impairment or disturbance in the functioning of the brain may include:

  • Dementia
  • Significant learning disabilities
  • Long-term effects of brain damage
  • Physical or mental conditions that cause confusion, drowsiness or loss of consciousness
  • Delirium
  • Concussion following a head injury
  • Symptoms of alcohol or drug use

For a person to lack capacity to make a decision, the Act says their impairment or disturbance must affect their ability to make the specific decision when they need to. But first people must be given all practical and appropriate support to help them make the decision for themselves.

Stage 2 can only apply if all practical and appropriate support to help the person has failed. If P lacks capacity – then the ‘best interests’ test applies – Chapter 5.

Working out what is in someone else’s best interests is invariably difficult. The Act requires people to follow certain steps to help them work out whether a particular act or decision is in a person’s best interests. In some cases, there may be disagreement about what someone’s best interests really are.

As long as the person who acts or makes the decision has followed the steps to establish whether a person has capacity, and done everything they reasonably can to work out what someone’s best interests are, the law should protect them.

At 5.6 of the Code it states that the checklist in s.4 MCA 2005 is only the starting point and in many cases extra factors will need to be considered. However, the decision-maker must not make a decision based on what they would do if they were the incapacitated person.

Useful resources for making a best interest decision

In the British Medical Association and Law Society book entitled Assessment of Mental Capacity. A Practical Guide for Doctors and Lawyers 4th ed, the contributors suggest that in their experience it is better to break the test down into three parts:

  • Does the individual have an impairment of, or a disturbance in the functioning of, their mind or brain, for example, a disability, condition or trauma that affects the way their mind or brain works?
  • Is the person unable to make a specific decision at the time it needs to be made for one (or more) of the specific reasons given in the MCA [see section three provisions below]?
  • Is the person’s inability to make the specific decision at the time when it needs to be made because of the impairment of, or disturbance in the functioning of, their mind or brain?

The book also contains a summary of the key principles relating to best interest decisions in paragraph 3.7

The Social Care Institute for Excellence (SCIE) provides some useful tools and Guidance. It also provides consultancy services to local authorities and health providers and training courses for social workers. You can find useful videos here.

The organisation for Coma and Disorders of Consciousness has written Mental Capacity Act and Best Interests decisions – a practical guide primarily for health care practitioners.

Good practice always requires good documentation of the evidence and reasoning underlying decisions made concerning a patient’s clinical care, and this applies especially when the person cannot give consent. Additional good practice required by the Act includes formal consideration and documentation of a person’s capacity. If the patient does not have capacity then one must identify whether or not there is a pre-existing Advance Decision, or a Court appointed welfare deputy or an attorney nominated by a registered Lasting Power of Attorney (LPA) to take decisions on their behalf.

If the person lacks capacity, and there is no relevant Advance Decision, and no deputy decision maker (Lasting Power of Attorney or Welfare Deputy) then doctors, other healthcare professionals, and healthcare teams have to take the decisions – acting in the patient’s best interests.

The e-book contains a Best Interests Decision form

The British Psychological Society (BPS) issued guidance written by Dr Theresa Joyce entitled Best Interests – Guidance on determining the best interests of adults who lack the capacity to make a decision (or decisions) for themselves [England & Wales]

A copy can be found online at https://www.scie.org.uk/files/mca/directory/BPS-best-interests.pdf

It covers approaches to making decisions for others; how the Courts decide on Best Interests; Best Interests meetings; Working through the statutory checklist. It provides some useful case studies.

Applying the guidance in practice

Esther, an elderly woman with dementia, is neglecting her appearance and personal hygiene. She has been found several times wandering in the street unable to find her way home. Her care workers are concerned that Esther no longer has capacity to make appropriate decisions relating to her daily care. Her daughter Joan is her personal welfare attorney and believes the time has come to act under the LPA. She assumes that it would be best for Esther to move into a care home, since the care staff would wash and dress her appropriately and prevent her from wandering. Is this right?

The s.4 checklist says it is not correct to assume that Esther lacks capacity on the basis simply of her age, condition, appearance or behaviour. You must first of all assess her capacity – if it is agreed that Esther lacks capacity to make decisions about her appearance and place of residence then ALL the relevant factors in the best interests checklist must be considered.

Joan must therefore consider:

  • Esther’s past and present wishes and feelings – not her own
  • The view of the people involved in her care
  • Any alternative ways of meeting her care needs effectively which might be less restrictive of Esther’s rights and freedoms such as increased home care provision & attendance at a day centre

Joan can then make decisions in her mother’s best interest under the LPA where the decision is one which her mother is found to lack the capacity to make.

It will always be relevant to consult the person who lacks capacity. This takes time as Joan will need to explain what is happening and will need to explain why a decision needs to be made. Joan must consider using simple language and/or illustrations or photographs to help Esther understand the options. She must ask Esther about the decision at a time and location where she feels most relaxed and at ease, breaking down the information into easy-to-understand points.

The relevant circumstances will vary depending on the decision. For example, if the decision is about major medical treatment, then a doctor will need to consider the clinical needs of a patient, the potential benefits and burdens of the treatment on the person’s health and life expectancy; whereas, if it was a routine or minor health problem then it would not be reasonable to consider life expectancy.

Conclusion

First and foremost, satisfy yourself that the patient really does lack capacity to make the specific decision, before moving to make a decision on their behalf. ‘Best interests’ decision-making is not easy – it is time-consuming and practically difficult. Ultimately, where there is disagreement about what is in the best interests of a patient, an application to court may be required.

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