A Best Interest Decision is the step that is taken if a person is found to lack mental capacity for a specific decision at a specific time. It is not a single action, but rather a dynamic process that aims to uphold the individual’s rights, keeping their thoughts, feelings, beliefs and values at its heart, while also consulting with all relevant parties to weigh up the viable options.
From our work supporting families, care teams and other professionals, we know how daunting it can be to apply Best Interest Decisions in practice. For those who don’t deal with these processes on a regular basis, it can feel like quite a complicated process.
In this new series of blogs, we aim to give you an overview of everything you need to know about the Best Interest Decision process, to inform you on what you need to know, to ensure you are working within the law, and in line with the MCA Code of Practice.
Note: whenever we refer to ‘P’, this means the ‘relevant person’ – i.e. the person on whose behalf the Best Interest Decision is being made.
The Best Interest Decision process
To begin with, let us consider the various steps that are outlined in the Mental Capacity Act Code of Practice:
- Identify the decision maker.
- Ensure clear viable options are established, alongside relevant circumstances.
- Review and apply the five principles of the Mental Capacity Act.
- Identify and apply for advocacy support for P if appropriate.
- Consultation with P.
- This can often be integrated within the Mental Capacity Assessment once it is established that P lacks capacity. Equally, it can follow on from the Assessment depending on the context of the situation..
- Consultation with all relevant parties
- This includes any named LPA(s) and deputy(s), P’s family, the care team, and any other professionals involved with supporting P on a day-to-day basis.
- Weigh up the risks and benefits identified through this process, using P’s voice as the ’priority guide’ of what items are of most importance for P.
- A balance sheet may be used, but caution is advised in its application.
- Critically reflect upon salient matters, being sure to avoid discrimination.
- Determine, in the balance of probabilities, whether P is likely to regain capacity, and therefore, what the duration of the Best Interest Decision should be.
- Review process to assess whether least restrictive option has been identified and whether other factors need to be considered.
- Draw a conclusion that is clearly documented alongside the Mental Capacity Assessment for the decision in question, which contains clear actions to be taken and by whom.
- This should be shared with P and all relevant parties.
Format of the Best Interest Decision process
The Best Interest Decision process may take the format of a formal Best Interest meeting if large complex decisions are being made, such as decisions relating to treatment, finances and accommodation.
However, it is often the case that a more ‘fluid’ process can occur, where individuals are consulted with as appropriate, and discussions form a part of everyday activities. For example, when deciding Best Interest on specific sections of an individual’s care plan. This may require arranging to speak separately with the person’s Next of Kin, key worker, and other appropriate professionals, drawing this together in the documentation.
Issues to be aware of
In many cases, the various steps of the Best Interest Decision process are often already occurring as part of everyday practice. However, this can lead to issues if it means that steps are not being properly introduced and explained, documented, or if key parties are not being included.
This is something to be aware of if you are working in this area, as documentation is absolutely key, as it provides a clear line of accountability and is also a vital legal protection for staff members should an issue arise further down the line.
Useful resources
There are a large range of resources available around Best Interest Decisions that are of support in guidance and direction, these include but are not limited to:
- Essex 39 Chambers – A brief guide to carrying out Best Interest Assessments (2019)
- Mental Capacity Toolkit (includes a useful flowchart)
- Teeside Safeguarding Adults Board – Practical guide to assessing capacity and making best interest decisions under the Mental Capacity Act (2005)
- Hampshire Mental Capacity Toolkit, part B – Best interest decisions (complex decisions)
- Dartington Trust – Mental Capacity Act (2005) decision-making
- Mind – Best Interest Decisions
- Nice Guidance
- Government – making decisions on behalf of someone else (aimed at deputies and attorneys)
- British Psychological Society – a guide to best interest decision making
- BMA guidance (aimed at doctors)
Next blog…
In the next blog in the series we will discuss the role of the decision maker, and how they are identified. We will also consider the ‘viable options’ that are identified and what circumstances may be relevant to the BI decision.