Following on from our blog on the Best Interest Decision process, in this blog, we look at the role of the decision maker, and how they are identified. We also consider ‘viable options’ and what circumstances may be relevant to the decision.
Identifying the decision maker
Firstly, it should always be determined whether there is a valid Lasting Power of Attorney (LPA) or Deputy in place for the decision in question. If so, then they are the ‘decision maker’ and will require clear information as to the viable options available. They will also need to be provided with all relevant information, which may include guidance on the options from various professionals.
If there is no LPA or Deputy in place then a ‘good rule of thumb’ is to consider who is directly involved or responsible in the outcome of the decision. For example:
- If the decision is for support in personal care, then the decision maker would be the care providers
- If the decision is for support with movement and transfers, including the use of a hoist, then the decision maker would be the care providers
- If the decision is for a flu or covid vaccine, then then the decision maker would be the nurse providing the injection
- If the decision is for a specific treatment, such as dentistry, then then the decision maker would be the dentist providing the treatment
Bigger decisions, such as placement/residence, will also require appropriate health and care professionals to support.
Viable options and relevant circumstances
When we think about ‘viable options’ in terms of Best Interest Decisions, this refers to the ‘real’ practical options that are available for the decision in hand. These should already be known prior to the Best Interest Decision being made, as they should have been identified and discussed as part of the Mental Capacity Assessment.
What options are considered ‘viable’ can be impacted by factors such as environment, the law (whether the option is legal), funding, training of staff, or similar. For example:
- Viable options for smoking/vaping within a care home may be affected by legal restrictions on smoking/vaping within public environments as well as the home’s fire risk assessments and the individual’s mobility. Therefore, options may be limited to only using the garden at a set smoking area. Access to this area may be restricted at night due to safety concerns. Therefore alternative options may have to be considered when the garden is unavailable in order to reduce the impact of nicotine withdrawals.
- Viable options for a person who is non-weight-bearing in their own home may be 2:1 carers when transferring or supporting set activities (e.g. personal care) due to safe working practices for manual handling. This is a legal protection for the care team, in order to reduce risk of injury. However, this 2:1 requirement may be reduced to 1:1 support when the individual is using their wheelchair and has the ability to self-propel.
Meanwhile, ‘relevant circumstances’ considers the logical and salient matters around the decision being made. For example:
- The decision to use a seat belt/lap belt when in the car and using a wheelchair. This would need to include the context of when, where, why and how long the belt would be used, alongside the associated risks and benefits of use or non use.
- The decision to spend small finances (weekly budget) with staff support. This would include how much money can be spent, how to keep the money safe, when it would be given, when to return money (change and receipts), the purpose of the small finances, how it could be used (etc.) alongside the associated risks and benefits of use or non-use.
For ‘bigger’ decisions, there is a fantastic guide by Essex 39 Chambers that considers salient information for decisions such as sexual relationships, property and finances, contact and many others. However, do bear in mind that this is a guide, and is not exhaustive in the factors that need to be considered.
Review the five principles of the Mental Capacity Act
The five principles of the Mental Capacity Act are essential to uphold throughout the Best Interest Decision process. Principles 4 and 5 are especially important. The key thing to remember here is that the decision must be made in the best interest of the person on whose behalf the decision is being made – it is made in their best interest and not in the interest of the care team, members of family or any other interested parties. It is also important that the decision is not a ‘blanket decision’, and keeps their wishes, views and values at the heart of matters.
Meanwhile, any Best Interest Decision being made should also be the least restrictive option that is not unduly imposing upon their human rights and personal autonomy. Restrictive practices can be categorised as environmental (e.g. locked doors), physical (e.g. restraint), mechanical (bed rails, lap strap of wheelchair, bucket chair etc), surveillance (sensor alarms, CCTV, GPS, monitoring etc), chemical (medication), or seclusion/isolation.
Is advocacy support required?
If the relevant person at the heart of the decision does not have family or friends to represent and support them – or indeed if there is a perceived conflict of interest – then an advocacy referral can be made. This should be done as soon as possible in the Best Interest Decision process to enable effective advocacy from start to finish. The type of advocacy required can vary, and is guided by laws including the Mental Capacity Act, for which I would recommend contacting your local advocacy provider if unsure.