Decision-making for those who lack capacity

Less and Least Restriction

Any restrictions that are imposed on a person need to consider the principle of Less Restriction, i.e. can restrictions that are in place be reduced or minimised in any way while still ensuring the person’s wellbeing is safeguarded and risks are managed? Also consideration should be given to the principle of least restriction (as set out in the s4 best interest checklist) i.e. what is the least restrictive option available that protects the person’s rights and freedoms. This only applies to restrictions that are necessary to protect the person without capacity from the risk of harm. Restrictions should not be imposed under the MCA that are for the protection of other people; where this is the case, an alternative framework will be required, e.g. Mental Health Act 1983, criminal justice interventions, etc.

Coercion and control

Coercion, with or without accompanying abuse or violence, has been recognised as a significant factor in domestic abuse and adult safeguarding situations. A new offence was created in 2015 by the Serious Crime Act, – ‘controlling or coercive behaviour in intimate or familial relationships’ (section 76), which closes a gap in the law around patterns of controlling or coercive behaviour in an ongoing relationship between family members or partners.
For more information about the complexities of coercion where capacity is an issue please see the Research in Practice resource focusing on this subject at – http://coercivecontrol.ripfa.org.uk

End of life care

Patients with terminal cancer or progressive long-term conditions will often be supported by healthcare professionals to set out Advance Care Plans (ACPs) with a range of decisions and wishes recorded to influence future care.

Best Interest decisions

Health and social care teams often make decisions regarding the care and treatment for an individual who lacks the mental capacity to consent to the proposed care or treatment and have no LPA for Health & Welfare, ADRT or ACP. In these situations, individuals should be given support to make decisions, and if unable to make the decision themselves, they should be supported to be actively involved and included in the decision. Family members, care staff and even fri

Decisions made in the best interests of the individual can be enacted in these situations and the Mental Capacity Act 2005 clearly defines the principles to be followed to ensure that care and treatment is lawful.

The Best Interest checklist ensures that that the process of decision-making is fair and person-centred; that there is equal consideration of the individual and their wishes, to avoid discrimination or the influence of pre-conceived ideas such as those of professionals, service criteria, family relationships.

Box 4. Best Interest Checklist – for decisions where an individual lacks mental capacity

1. Encourage participation
2. Identify all relevant circumstances – understand the individual and their likely views/wishes
3. Find out the person’s views – past and present wishes, known beliefs and values, previous decisions and actions taken
4. Avoid discrimination – decisions should not be made simply on grounds of age, condition, gender, race
5. Consider if the person is likely to regain mental capacity – can the decision be delayed until the person has capacity to consent
6. Does the decision concern Life-Sustaining Treatment – the decision should not bring about the person’s death
7. Consult others – anyone previously named by the individual, family, friends, an LPA or Court Deputy
8. 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
9. Avoid restricting the person’s right – consider if there is a least restrictive option
10. 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)

In practice it is not always possible to fulfil every step of the checklist, but the clinical team should always:

1. Consider the least restrictive or invasive treatment
2. Involve the family at the earliest opportunity
3. Consider all circumstances relating to the clinical situation to agree which treatments provide the optimal outcomes for the individual.
4. Involve the health and social care practitioners already providing care for the individual, as they may have a different perspective and knowledge of the patient and can all contribute relevant information to help make person-centred decisions (Dean 2018).

When end-of-life care decisions are required in the absence of an advance care plan or any record of the individual’s wishes, social care staff who know the person well are often in a good position to contribute to the planning and discussions for Best Interest decisions and support the individual through the process of Best Interest decision-making around end-of-life care.

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Key Learning points