RELEVANT CHAPTERS

Assessing Mental Capacity: Guidance

Deprivation of Liberty Safeguards

Mental Capacity Act 2005: Guidance for Best Interests Meetings

RELEVANT INFORMATION

A Brief Guide to carrying out Best Interests Assessments (39 Essex Chambers)

August 2019: This chapter has been amended to link to the latest version of the Best Interests guidance from 39 Essex Chambers, as above.

1. Introduction

Someone can only make a decision on behalf of someone else if that person lacks the mental capacity to make that particular decision for themselves. The worker cannot make a decision on behalf of someone who has capacity just because s/he disagrees with the decision they have made, or feels it to be a risky decision. A formal assessment of capacity must be made by following the Hull City Council guidance on Assessing Mental Capacity and must be carefully documented.

For most decisions about social care, the decision maker is the worker proposing the course of action through the support plan. In cases of medical treatment, the decision maker will be the doctor, dentist or nurse prescribing or delivering the treatment. Day to day decisions such as those relating to personal care, whether to go out or to buy necessary toiletries can be made by the worker involved provided the guidance included here has been followed.

If someone has fluctuating capacity or there is a reasonable belief that the person will regain capacity in the near future, consideration must be given to whether the decision can wait until they have capacity or to whether a short term decision can be made. This leaves open the opportunity for the person to make the long term decision for themselves when they have the capacity to do so.

When making a best interest decision, the worker must consider the person’s current and future interests, weigh them up and decide on balance, which is the best course of action for that person.

The worker must avoid discriminating against the person by making assumptions about what is in their best interest based on their presenting needs, for example assuming that all frail older people need residential care or that all people with a learning disability want to live independently.

2. Scope

This guidance applies to all decisions made by others in the best interest of someone who lacks mental capacity and provides guidance as to which decisions can be made by an individual worker, which need a best interest meeting with or without the involvement of an Independent Mental Capacity Advocate and which need to be made by the Court of Protection. It is important to clarify that decisions made by a specialist Best Interest Assessor only apply to decisions taken under the Deprivation of Liberty Safeguards and not to those taken under the Mental Capacity Act 2005 (MCA).

3. Assessing Capacity

A summary of the process is provided here, but the full Hull City Council guidance on Assessing Mental Capacity must be read and followed when carrying out this task.

If it seems that a decision may need to be made on behalf of someone else, someone with sufficient skills and qualifications must carry out an assessment of capacity to determine whether the person is able to make the decision for him/herself or not. S/he must first establish whether the person has an impairment or disturbance in the functioning of their mind or brain. If there is, s/he must then find out:

  • whether the person can understand information in relation to the decision being made;
  • whether they can retain that information long enough to be able to come to a decision;
  • whether the person can weigh up the information and the pros and cons of different courses of action;
  • whether the person can communicate the decision.

Case law has established that there is actually a third part to this test which is whether the person’s inability to make a decision is because of the identified impairment or disturbance. This is called the causative nexus and there must be a clear link between the impairment or disturbance and the inability to make the decision. It is not enough that the impairment or disturbance impairs the person’s ability to make a particular decision; it must render them unable to do so.

If all of the criteria listed above have been met, then the person does not have capacity to make that particular decision although they may have the capacity to make others. Where appropriate, for example where the best interest decision is in relation to a day to day task, this test can be applied quickly in the course of a conversation with someone or it can even be applied without the person being there if there is sufficient evidence arising from the worker’s knowledge of the person. In all cases though, the evidence of a lack of capacity and the rational for the decision must be recorded.

4. Making a Decision in Someone’s Best Interest

If the person does not have capacity, the assessor must consider whether they are likely to regain it in the near future either due to recovery from illness or because they have fluctuating capacity.

If they are likely to regain capacity, the decision should be put off until then if possible, so that they can make the decision themselves. If the person is unlikely to regain capacity then decisions must be made on their behalf. These must always be the least restrictive option and be in their best interest. In order to work out what this is, the worker making the best interest decision (which may be a different person to the assessor of capacity) must:

  • find out if there is any advance statement made by the person when they had capacity which explains what they want to do;
  • consider all relevant circumstances;
  • encourage the person to contribute to the decision making process as far as they are able;
  • consider the person’s past and present wishes and feelings;
  • consider their religious, moral, cultural or political beliefs and values;
  • take into account the views of their carers, family, friends and anyone named by them as someone to be consulted, but be aware that unless one of them holds a Lasting Power of Attorney to make welfare decisions, their wishes are not paramount. They must be taken account of, but not necessarily followed;
  • be able to show the proposed course of action is the least restrictive alternative;

If someone holds a valid Lasting Power of Attorney which has been registered and activated by the Court of Protection they can make decisions on the person’s behalf provided that:

  • they can show that the decision they make is in what they reasonably believe to be the person’s best interest; and
  • it is within the scope of the LPA. Someone who holds an LPA for finance and property cannot make decisions about a person’s health and welfare and vice versa.

If workers believe that a Deputy or Attorney is not acting in the person’s best interest, an application must be made to the Court of Protection to make the decision and if necessary to remove the Deputy or Attorney.

A person without capacity can contribute to the decision making process verbally, through their reactions or through their behaviour. These must be taken into account when reaching a best interest decision, although they do not have to be followed if there is a strong reason to override the person’s expressed preferences. Examples of good reasons would be that the person’s expressed preference would put them or others at a significant degree of risk which they do not understand or that their current expressed preferences seem to go against the values they held when they had capacity.

Anyone making a best interest decision for someone else must guard against making the decision which they would make if they were in that person’s situation.

When assessing (and recording) where someone’s best interests lie, the critical first step is to identify what the decision is which must be taken. It will be necessary to identify what the options actually are. If the person, a family member, a holder of a Lasting Power of Attorney or a Court appointed Deputy request an option which would not be available to the person if they had capacity, that option need not be offered.
Having identified the options, and having taken the steps necessary to identify the person’s wishes and feelings, it can be extremely helpful to draw up a balance-sheet of the benefits and the risks or disadvantages to the person of each of those options. It is often easiest to do this in table form, or using bullet points, so that the reader can easily see the issues and can compare the various options under consideration. All of the practical implications should be considered as well as less tangible factors such as relationships with family members and care home staff. The likelihood of those risk and benefits occurring should be identified as well as the relative seriousness and/or importance of the risk and benefits to the person.

It is extremely important to be aware that there may be many apparent risks of a particular course of action and only one benefit, but that benefit is of overriding importance. Such a benefit is sometimes called the factor of ‘magnetic importance’. An example is where there are many risks associated with maintaining contact with a previously abusive family member, but the person’s wellbeing depends on being able to continue to see them.

Although it may seem clear in light of the analysis of benefits and disadvantages, it is helpful to set out separately a conclusion about which option you consider to be in the person’s best interests and why. This is particularly important where there is a dispute or where the decision made entails significant disadvantages to the person, such as a loss of independence, intrusion into a longstanding relationship, or inevitable distress caused by a change of environment. In such a case, it is vitally important to be able to demonstrate why no less restrictive course can be chosen.

Having decided that certain risks are worth taking in the person’s best interests, or that certain disadvantages are outweighed by benefits, the worker needs to show that they have considered what can be done to reduce these risks or disadvantages and set out detailed plans for dealing with them.
Where there is the prospect that a proposed option may fail in the short or medium term, there must be thought given to what will happen in those circumstances.

5. Best Interest Decisions which cannot be made by a Worker alone

Some decisions cannot be made by workers or managers but must either be made by a formal Best Interest Decision meeting or via an application to the Court of Protection.

A Best Interest Decision meeting must be held when:

  • any kind of planned restraint is being considered;
  • the person regularly signals disagreement with a day to day decision made on their behalf, for example the need to receive personal care;
  • disagreement by family members or other professionals cannot be resolved either by discussion, or in more serious cases, by mediation.

In the event of a dispute as to what may be in the person’s best interests, the MCA does not give a special status either to health and social care professionals or to the person’s family simply by virtue of their respective statuses. If there is a dispute about best interests among available options which cannot be resolved by discussion, then ultimately it is for the Court of Protection to decide on the person’s behalf.
A Best Interest Decision meeting can also be held if the Decision Maker feels that formal support from other professionals or interested parties is necessary to the decision making process. In other words, there will be situations when it is not strictly necessary to hold a meeting, but it would be beneficial to the decision making process.

The meeting should include anyone who can contribute to the decision making process or may be directly affected by the decision made.

6. When to involve an IMCA

Some decisions require the involvement of an Independent Mental Capacity Advocate (IMCA). These are:

  • permanent or long term changes of accommodation;
  • serious medical treatment;
  • accommodation in hospital for more than 28 days.

The IMCA does not become the decision maker, but may represent their views to either the decision maker (as outlined above) or to a Best Interest Decision Meeting if any of the criteria outlined in the previous step are met.

7. When to apply for a Deprivation of Liberty (DoLS) Authorisation

Any decision which involves depriving a person of their liberty must be made by an appropriately trained Deprivation of Liberty Safeguards Best Interest Decision Maker. A Supreme Court judgement in March 2014 made reference to the ‘acid test’ to see whether a person is being deprived of their liberty. There is a deprivation of liberty where the person:

  • is under continuous supervision and control;
  • is not free to leave;
  • lacks capacity to consent to these arrangements;
  • and whose confinement is the responsibility of the State.

For full guidance on whether a DoLS authorisation is needed, please see the guidance on Deprivation of Liberty Safeguards.

8. When to apply to the Court of Protection

Certain major decisions about a person’s social care, serious healthcare issues and some major medical decisions can only be made by the Court of Protection. These will usually be where there is serious disagreement which cannot be resolved or where an interested party disagrees with a Best Interest Decision and applies to the Court for a ruling. In situations such as these, all attempts must be made to resolve the disagreement through discussion and applications to the Court of Protection should always be a last resort.

If a person has substantial savings which they wish to access or has a property which needs to be sold, an application must be made to the Court of Protection for a one off decision or the appointment of a deputy to manage the person’s financial affairs

9. Recording

Any decisions made on someone else’s behalf must be recorded. The recording must specify:

  • how the decision was reached;
  • the reasons for the decision;
  • who was consulted to help work out best interest;
  • what particular factors were taken into account.

One decision can be implemented many times; for example there is a decision that in order to maintain personal hygiene and good skin condition someone needs a bath every morning. The best interest decision making process need not be repeated every day.

10. Reviewing Best Interest Decisions

Best Interest decisions should reviewed periodically (at least annually) as someone’s circumstances may change or what is in someone’s best interest may change over time.