When a person lacks capacity; this could be by reason of a disability, a mental health condition, illness or injury, they are not always able to make decisions for themselves, particularly when it comes to complex and important decisions.
However, the Mental Capacity Act 2005 provides a legal framework and practical guidance for making decisions when a person lacks capacity. People that have to adhere to this framework include Deputies, Attorneys, local authority social services teams, medical professionals, advocates and the Courts themselves.
Therefore, when there is a decision that needs to be made regarding someone who does not have capacity, or is suspected to not have capacity, there are two stages. Firstly, there needs to be a mental capacity assessment, because you cannot assume someone lacks capacity without sufficient medical evidence. If it is judged that the person lacks capacity to make a certain decision, then the second stage would be a ‘best interests decision'.
When it comes to best interests decisions, there will be a best interests ‘decision maker', this could be a Deputy, Attorney, a local authority, social care staff or the Court. A ‘decision maker' is someone who is acting within their authority to make a particular decision on behalf of the person lacking capacity. This person must make all decisions in the best interests of the person that the decision relates to.
When the decision maker is making these decisions, the Mental Capacity Act sets out the factors which they must have regard to. This is known as the ‘best interests checklist'. These factors include:
- Considering all relevant circumstances.
- Considering whether the person will regain capacity and if the decision can be postponed until then.
- Considering the person's past and present wishes and feelings, including beliefs and values that would be likely to influence the person's decisions if they did have capacity.
- Consulting relevant individuals where it is appropriate. This would include family or friends, anyone named as someone to be consulted or anyone engaged in caring for the person who lacks capacity.
Sometimes there will be disagreements about what is in the person's best interests. When this is the case, there are several routes that can be taken in order to make a decision, including negotiation and mediation. Where it is appropriate, an application can be made to the Court of Protection for the Court to make a best interest decision. Where an urgent or emergency decision is needed, the Court can deal with this on an emergency basis.
At Lanyon Bowdler, we act as professional Deputies and Trustees and make carefully considered best interest decisions in line with legislation and case law on a daily basis. We also assist people applying to become Deputy or Attorney for their family members or friends. We also provide legal guidance for people who are having to make best interest decisions for loved ones and want to ensure they do so with due regard to the law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.