If a decision-maker determines that someone lacks capacity to make a specific decision, the decision-maker must then go on to make that decision – this is called a best interests decision. A best interests decision can only be made after it has been determined that the person lacks capacity.
Principle 4 requires that all decisions are made in the best interests of the person who lacks capacity. The focus must be on this person and their best interests and not that of others, such as family, other patients or residents, or the general public.
The Mental Capacity Act (MCA) can’t lay out a process for making decisions, as the scope for decision making is so wide. It does lay out what needs to be taken into consideration in a best interest checklist.
The best interests checklist
Using the best interests checklist
A best interests decision can be made and recorded by the decision-maker. (Part 10: How to record decisions)
It’s often not necessary to hold a Best Interests Meeting to formalise the decision making, but it is always necessary to record the best interests decision.
If you are using the MCA capacity assessment form the best interests decision is recorded on this form. It can also be recorded in a care plan or in notes.
The MCA gives the power to make a decision to the decision-maker. (Part 7: Being a decision-maker)
Families often assume that they can make decisions and may be upset and angry if their views are not followed. It’s important to make sure people understand how and why decisions are made. The decision-maker may need to explain the law and their role to any family or friends. (Part 24: MCA and family and informal carers)
A decision made by Devon or Torbay councils, an NHS unit or practitioner, or a private provider may not be what family or friends would choose. The organisation needs to be able to demonstrate that it is offering better care for the person who lacks capacity than the care the family are proposing. Every effort will need to be made to resolve disputes about decisions. If it can’t be resolved the decision will need to be considered by the Court of Protection and a welfare determination made under s16 Mental Capacity Act.
If professionals disagree about a decision, the decision-maker makes the final decision. There will need to be appropriate discussion of the issues and a clear record of why the decision is made. A best interests meeting should take place and the procedures for resolving disputes should be followed; ultimately the decision could be made in the Court of Protection. (Part 11: Resolving disputes) (Part 8: Best interests decisions) (Part 23: The Court of Protection)
This page was last modified: 3rd Jan 2014