The Mental Capacity Act 2005 (MCA) defines mental capacity as time and decision specific. It provides a legal framework for assessing mental capacity and then making best interest decisions when a person (aged 16+) is assessed not to have capacity.
The Act promotes consultation and requires transparency in decision making processes in order to protect and empower people from random or unsound decision making.
The Act is supported by a Code of Practice. All paid and professional workers are legally required to ‘have regard to’ the Code and its statutory principles and should be able to provide evidence of this through proper recording systems.
A formal Best Interests Meeting may be required:
- When decisions are very complex, significant or risk laden;
- When there are different decisions with differently loaded risks / benefits;
- When there are different views as to what is considered to be in an individual’s best interests;
- When there are options and issues that require the input of different professionals / people, and which can only be properly covered and addressed through such a face to face a meeting.
Any unresolved disputes between professionals and / or key agencies e.g. in relation meeting criteria for their involvement or service provision, or unresolved disagreement about roles and responsibilities as either decision makers or consultants within the decision making process, should be addressed at a senior management level prior to the best Interest meeting.
If the situation is very urgent, decisions will have to be made based on information and people available to consult within the timescales imposed by the nature and urgency of the decision. The decision maker will still need to meet the requirements of the statutory checklist.
This guidance, and accompanying pro forma is intended to support Decision Makers, Chair persons and Minute Takers through the process of arranging, managing and recording a Best Interest Meeting, so that:
- The MCA statutory principles and Best Interest check list enshrined in the Act are properly considered;
- The person remains central to the decision and (s)he and all relevant professional and informal networks are properly consulted and lines of responsibility clarified;
- *There is a forum and clear structure which promotes partnership working, the sharing of relevant information, positive expression of different views, problem solving, and analysis of the risks and benefits attached to different options;
- If a decision cannot be made, further action and information needed to facilitate this is formally agreed;
- The decision making process is transparent, clearly recorded and can stand up to scrutiny. If the matter is referred to the Court of Protection, the Court will require evidence of how decisions have been made.
The need for a Best Interest decision making meeting will usually be initiated by the designated decision maker or their manager, but could be prompted by others appropriately involved in the situation / decision.
There must be clarity about the nature and the purpose of the meeting, and that the decision is one that can be made under the MCA and Best Interest principles1. If there is more than one decision to be made, each decision should be defined and the relevant people for each decision involved.
The person must already have been properly assessed to lack capacity to make the decisions(s) concerned using the Statutory 2 stage test 2 and a review of their capacity undertaken, appropriate to their circumstances and the time lapse between the most recent mental capacity assessment and the Best Interest meeting.
A person’s needs and situation may fall within different legislative structures or other processes e.g. Mental Health Act legislation or safeguarding procedures. It may be necessary and appropriate to include these elements within the Best Interest meeting, but the Best Interest meeting is not a substitute e.g. for a Safeguarding Strategy meeting or Case Conference, or CPA. The Chair person should confirm what authority the Best Interest meeting has in relation to any of these other elements, and if they need also to be addressed separately within a different formal or statutory process.
The agenda should be sent out prior to the meeting so that all those attending are clear about what the decision is that needs to be made.
1 Some serious medical treatments e.g. non therapeutic sterilisation and other decisions which carry untested ethical dilemmas require a ruling from the Court of Protection. Other very personal decisions e.g. around consent to sexual relations, cannot be made under the MCA and a best Interest decision may for e.g. focus on the least restrictive alternatives for managing particular relationships.
2 Stage 1 Diagnostic Test:
Does the person have an impairment of, or disturbance in the functioning of the mind or brain? If so, is that impairment / disturbance such that the person cannot:
Stage 2 Functional Test:
Understand information relevant to the decision or:
Retain that information long enough to:
Use or weigh up that information as part of the decision making process or Communicate that decision by any means.
All invitees should be clear about their role and the contribution they can make, and should come prepared with relevant information. Agreement should be reached about how to include the contribution / views of any person who is unable to attend, so that the meeting can still serve its purpose, rather than be unduly delayed.
Attendance and the subsequent sharing of information should be in line with the Data Protection Act 2018 and on a need to know basis. It may be appropriate for some contributors to attend part of the meeting, or provide information through earlier discussion or in writing.
This should not be the decision maker, and may be the decision maker’s line manager or another senior professional with relevant skills and experience in chairing meetings. Attendees may have different or opposing views and different levels of experience in such meetings. The decision may have a significant impact on the person, and a role of the chair person is to ensure everyone has the opportunity to contribute.
The Decision Maker:
The person(s) responsible for the capacity assessment (s), making and implementing the best interests decision(s) will bring all information relevant to their role and the decision(s) some of which will have been established at the assessment stage (See Code of Practice 4.38-4.42).
Other Social Care and Health Staff:
Other staff that have a professional and / or caring role or have relevant information about a person’s particular condition, needs, wishes / preferences on both a day to day basis or in relation to specific issues. They may also bring knowledge and information about risks and benefits of specific courses of action or resources available.
Social Care and Health Legal Services:
Legal advice will be required where an application to the Court of Protection is being considered, or may be required in other complex situations, where clarification regarding different legal remedies, existing case law, or the lawfulness of particular actions needs to be considered. Lawyers will advise according to their remit (i.e. Local Authority or Health).
Lasting Power of Attorney or Court Appointed Deputy:
They will be the decision maker within the scope of authority legally prescribed to them and are bound by the Best Interest principles.
Family / Social / Informal Network:
They can provide important information about current and previously expressed wishes, values, beliefs, culture and how different options might impact on them.
Independent Mental Capacity Advocate:
If the decision is about a long term change in accommodation, or a serious medical treatment and the person does not have family or another person who the decision maker considers appropriate to consult, there is a statutory duty to instruct an IMCA to be consulted and involved in the decision making process. The decision maker has a power to instruct an IMCA in safeguarding situations or for a review of long term accommodation.
Written Statements of Preferences / Wishes:
Reasonable efforts must be made to establish if these exist. These and any previously expressed wishes and feelings must be taken into account, and reasons given if not followed.
Advance Decisions to Refuse Treatment:
If the decision is in relation to a medical treatment and there is a valid and applicable advance decision to refuse that treatment then this holds as much weight as if the person has capacity and so Best Interest decision is not applicable.
Recording should reflect an accurate summary of the different issues, how these have been considered, and all agreed action(s), together with the reasons why a particular option has been chosen. This will provide evidence of the decision making process, and how the MCA statutory principles have been applied.
4. Process / Agenda
4.1 Purpose of meeting and introductions
- Clarify the nature and purpose of the meeting, ground rules;
- Names of attendees and relationship to person;
- Purpose of Meeting and Introductions:
- Agree agenda, including:
- Details of any reports provided and when these will be included;
- Confirm what the specific decision(s) to be made;
- Provide background and details of previous mental capacity assessments and outcomes.
4.2 Provide and discuss information
Each participant should give information relevant to their role, relationship, and knowledge of the person, and all factors which are relevant in relation to the particular decision – advantages and disadvantages of any different options. Where there are several options and / or advantages / disadvantages, a flip chart may be helpful for easy visual reference.
4.3 Consider the statutory Best Interest checklist
(5.13 Code of practice).
- Options must not be limited by assumptions made on basis of age, appearance, diagnosis, behaviour);
- That all “relevant” circumstances are considered;
- Can the decision be delayed because the person might regain capacity?
- How has the person has been / is being supported to have maximum involvement in the decision making process, and why the decision cannot be put off (i.e. if not urgent and person might regain or gain capacity);
- Take into account past and present wishes / feelings and values;
- Consult with all relevant others, informal and professional (Don’t forget Attorney, Deputy, IMCA);
- Special considerations apply to decisions about life sustaining treatment (code 5.29-5.36). The Best Interest decision cannot be motivated by a desire to bring about the person’s death.
Before a decision is reached, consideration must be given to which options might effectively achieve the intended outcome in a way that is less restrictive of the person’s rights and freedom of action (statutory principle 5). Restraint or restrictive practices may be permitted under certain conditions (Code of Practice 6.40-6.48), but where these might amount to a deprivation of liberty, consideration must be given to either a request for authorisation under the Deprivation of Liberty Safeguards, or an application to the Court of Protection.
4.4 Summary and Best Interest decision
The chair person will summarise key points and different possible courses of action and participants will say what decision they believe is in the person’s best interests and why.
In this multi-disciplinary process, the decision maker consults with others whose views will then inform the best interest decision and overall agreement may be reached. However, the designated decision maker has final responsibility for making the decision and must therefore be satisfied that the decision is in the person’s best interests.
Differences of opinion need not prevent the decision maker from making a best interest decision, but if there is significant unresolved disagreement or more information is needed or something else needs to happen before the best interest decision can be made, then a further meeting should be arranged as necessary. A Best Interest meeting should not be ended without a conclusion.
4.5 Failure to agree
If attempts to resolve disagreement fail, having tried all available options e.g. 2nd or other opinions, mediation, complaints procedure, further meeting, and the decision is a serious one then the matter may have to be referred to Court of Protection. Seek legal advice.