Best Interests Decisions

Under the Mental Capacity Act 2005, "best interests" is a multifactorial test. It is not simply a matter of what is medically or clinically optimal. Decision-makers must consider:

• The person's past and present wishes and feelings — things they have said, written, or expressed when they had capacity, as well as any preferences or distress observable now;
• The person's beliefs and values — their religion, culture, ethical views, and any known preferences;
• Other relevant factors the person would be likely to consider if they could;
• The views of family members, carers, and others who know the person well (though their views are not determinative).

Best interests decisions must also follow the least restrictive principle — where two options both achieve the desired purpose, the one that is less restrictive of the person's rights and freedom must be chosen. For example, a care home placement should only be chosen over home care if home care cannot safely meet the person's needs.

Different people make best interests decisions in different contexts:

• Healthcare professionals make best interests decisions about medical treatment and clinical care on a day-to-day basis — doctors, nurses, and therapists regularly make such decisions without court involvement;
• Social workers and care managers make best interests decisions about care arrangements, placements, and care plans;
• LPA attorneys make decisions within the scope of their LPA when the person lacks capacity;
• Deputies appointed by the Court of Protection make decisions within their deputyship order;
• The Court of Protection makes or authorises decisions in serious or disputed cases.

When there is no attorney or deputy, and no family member available to consult, the decision-maker must still follow the best interests process — and may need to consult an Independent Mental Capacity Advocate (IMCA) where the decision involves serious medical treatment or a change of accommodation.

Disputes about best interests decisions — particularly between family members and professionals, or between family members themselves — are unfortunately not uncommon. If professionals and family cannot agree on what is in the person's best interests, the options are:

• Mediation — A neutral mediator can help parties reach agreement. NHS England and many ICBs have processes for clinical ethics consultation which can support this.
• Court of Protection application — For serious or unresolvable disputes, an application to the Court of Protection can result in a judicial determination of what is in the person's best interests.

Families who believe professionals are not acting in the person's best interests should raise concerns formally — with the healthcare provider, through the complaints process, and if necessary through the Parliamentary and Health Service Ombudsman or Local Government and Social Care Ombudsman.