Best interests

Decision making

The MCA 2005 contains provision for different ways of making decisions once a person has been found to be unable to make the decision themselves. In relation to medical treatment, a valid and applicable Advance Decision to Refuse Treatment has the same weight as if the person were able to make the decision at the time. ‘Best interests’ assessments are another way of making a decision.

‘Best interests’ is deliberately not defined in the MCA 2005. Instead, it sets out a process in order to reach that decision, focusing on what matters from the patient’s point of view. Professionals should arrive at a decision that they believe is the correct decision for the individual rather than the decision the professional would prefer.

The decision maker

The law does not state who the “decision-maker” should be except in certain circumstances.  

  • If there is a valid and applicable Advance Decision to Refuse Treatment, the person themselves is the decision maker even though they don’t have capacity. Their decision cannot be overridden by others on the basis that it is not in the person’s best interests.  
  • If there is a Lasting or Enduring Power of Attorney or a Court has appointed a Deputy, the Attorney or Deputy will be the ‘decision maker’ for decisions within the scope of their powers.  
  • The Court of Protection can also make decisions on behalf of someone who lacks capacity to decide. 

If there is conflict or doubt about whether a decision is truly in the individual’s best interest (including if a professional believes an Attorney or Deputy is no acting in their best interests) the decision will need to be looked at by the Court of Protection.