This note is to provide you with some guidance relating to “Best Interest” decisions and how that is achieved.
When it has been established that a person lacks mental capacity, those around them such as attorneys, deputies, family members or health care professionals need to make “best interest decisions” on their behalf.
Checklist when making a ‘best interest’ decision
Section 4 of the Mental Capacity Act 2005 provides a checklist on how and what to consider when making a best interest decision. These include:
- Not making a determination merely based on the person’s age, appearance, condition or behavior. This may lead to making unjustified assumptions about what might be in their best interests.
- Not treating a person as lacking mental capacity just because they have made an unwise decision.
- Considering whether the person may regain capacity at some point to make the decision themselves and if so, when that is likely and can the decision be delayed.
- Ensuring, where possible, that the person is engaged and involved in the decision.
- Reviewing past and present wishes and feelings of the person to keep to a pattern already set, paying particular attention to any relevant written wishes such as Advance Decisions.
- The person’s culture and religious beliefs must be considered and adhered to where possible.
- You must consult those engaged and interested in the persons welfare including family, friends, attorneys and deputies.
- Consider how the person would be affected by your decision and ensuring this is not detrimental to their wellbeing or restricting their rights and freedom.
When making best interest decisions, it is extremely important that a person is not deemed as already lacking mental capacity because they have conditions such as dementia, a learning disability or a brain injury. You must assume that a person has the required mental capacity to make the decision themselves unless it is proved otherwise.
It is important to take steps to enable the person to try and make a decision themselves. To aid with this you can:
- Find a preferred time of day and location where their understanding is better.
- Exploring different types of communication, such as visual aids, Makaton or utilising technology.
- Presenting the information in different and simpler formats that are easier to understand.
- Considering whether someone else could aid with communicating the decision.
- Ensuring the person is comfortable and not distracted.
When making best interest decisions, you cannot ignore any written statements made by the person. It is common for people to have documents called “Advance Decisions” or “Living Wills”. It is important to note that a Living Will is not the same as a standard Will in which you make provision for your estate after death. You may find our blog on “Lasting Powers of Attorney” useful.
There are a number of terms that you may come across with regards to this type of document. They are commonly referred to as Advance Decisions, Living Wills or Advance Directives. Essentially, they relate to the same thing.
An Advance Decision typically relates to the refusal of medical treatment in certain circumstances. This is a legally binding document if created when the person making it had mental capacity. It must be drafted as a deed, that is, be in writing, signed, witnessed and clearly state that the decision applies even if life is at risk.
You cannot include within the Advance Decision the refusal of basic care to keep you comfortable, refusal of food and drink by mouth or anything illegal such as requesting help to take your own life. Furthermore, you cannot demand specific treatment as medical professionals will deem whether they consider treatment necessary or inappropriate.
With such a document, the contents should be reviewed to ensure that it is kept up to date. The medical professionals will be less inclined to follow the terms of the Advance Decision if it was made some time ago – as wishes change. Furthermore, medical advances are made and a condition that may have been life threatening ten years ago may now be simply treated.
Decisions relating to medical treatment can also be included within a Health and Welfare Lasting Power of Attorney. There are specific sections relating to your preferences and life sustaining treatment decisions.
For more information on the services we can provide in this regard please visit our “Mental Capacity & Managing Affairs” webpage.