4

Best interests

Introduction

Where a person lacks mental capacity to consent to care and treatment (including restraint and deprivation of liberty), and there are no other legal provisions for decisions to be made on their behalf, decisions regarding care and treatment must be made under Best Interests principles. The MCA does not define what would or could be in the best interest of an individual – as the whole purpose of the Act and its Code of Practice, is to promote person-centred care, protect the rights of individuals and ensure the right decisions are made for individuals at specific times. Rather, it sets out a process for Best Interest decisions about care and treatment which are based on the needs, wishes and choices of the individual person – not the desired outcome of professionals, the routine or standards of the service or any targets or limitations of the organisation.

Where a person lacks mental capacity to consent to care and treatment (including restraint and deprivation of liberty), and there are no other legal provisions for decisions to be made on their behalf, decisions regarding care and treatment must be made under Best Interests principles. The MCA does not define what would or could be in the best interest of an individual – as the whole purpose of the Act and its Code of Practice, is to promote person-centred care, protect the rights of individuals and ensure the right decisions are made for individuals at specific times. Rather, it sets out a process for Best Interest decisions about care and treatment which are based on the needs, wishes and choices of the individual person – not the desired outcome of professionals, the routine or standards of the service or any targets or limitations of the organisation.

The process of making a Best Interest’s decision should involve a range of people, including the person who lacks mental capacity, their family/friends and/or advocates. The Best Interest principles should lead to more collaborative, comprehensive, better informed and person-centred care and treatment. Decisions should still be made based on less restrictive care, minimal invasive treatment and the most aligned to the known wishes of the person – whether this is in regard to serious medical treatments, the restriction, restraint or deprivation of liberty for the purposes of care or for discharge/changes to long-term accommodation and care.

‘Best interests’ is – deliberately – not defined in the MCA 2005. The Act itself never sets out what is in someone’s best interest. Instead it sets out a process in order to reach that decision. As Baroness Hale stated in Aintree University NHS Hospitals Trust v James [2014] USKC 67, “the purpose of the best interests test is to consider matters from the patient’s point of view.”