The best interests checklist
Section 4 MCA 2005 contains what is known generally as the ‘best interests checklist’. It is important to note that this is a non-exhaustive list and that not all the factors will be equally as relevant to all types of decisions, but they must all be considered each time, even if only to disregard them as not relevant to that case.
The checklist contains the following factors:
Avoid discrimination: the person determining best interests must not make assumptions about someone’s best interests merely on the basis of their age or appearance, condition or behaviour
Identify all the issues and circumstances relating to the decision in question which are most relevant to the person who lacks capacity to make that decision.
Consider whether the person is likely to regain capacity (e.g. after receiving medical treatment). If so, can the decision wait until then?
Encourage participation: you must do whatever is reasonably practicable to permit and encourage the person to participate, or to improve their ability to participate, as fully as possible in any act done or any decision affecting them.
Try and discover the person’s own wishes feelings and beliefs perhaps by involving the person, their family and friends. You should be particularly interested in the person’s past and present wishes and feelings; any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question: any other factors the person would be likely to consider if able to do so. If you can identify the person’s wishes and feelings about a particular course of action, doing something different must be justified.
Consult other people, if it is practicable and appropriate to do so, for their views about the person’s best interests and, in particular, to see if they have any relevant information about the person’s wishes, feelings, beliefs or values. For some decisions, especially serious medical treatment and changes of accommodation, in the absence of someone with whom it is appropriate to consult, an Independent Mental Capacity Advocate (IMCA) will be required.
Does the decision concern Life-Sustaining Treatment: the decision should not bring about the person’s death
Where the decision is regarding serious medical treatment or long-term accommodation and the individual has no-one available to be involved (they are deemed as ‘un-befriended’) an IMCA must be consulted and involved in the Best Interest decision
Avoid restricting the person’s rights: consider if there is a least restrictive option
Weigh up all of the above, to make a considered decision based on the person involved
(Based on Best Interest principles from Mental Capacity Act Code of practice – Department of Constitutional Affairs 2007)
1 Reflecting on values and bias within mental capacity decision-making
2 The history and current context of mental capacity legislation and policy
3 The concept of mental capacity
4 Best interests
5 Supported decision making
6 Deprivation of liberty: human rights
7 MCA in clinical decisions for care and treatment
8 MCA and the Office of the Public Guardian (OPG) role