Determining best interests

Decision making for the donor where the donor lacks mental capacity is following section 1(5) Mental Capacity Act 2005 (MCA). 

An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

Section 1(5) leading into section 4 MCA form the basis upon which best interests decisions are made. In practice best interests decisions are formed through a multitude of factors

• Can the donor make this decision now or will (may) the donor regain sufficient capacity in the future, if so when
• Is there an Advance Decision (living will) and does it apply, or is it usable as a guide to the donor wishes
• What do others involved in the donors care think, are there any conflicts of these view or pions and how strong are they, is it appropriate and reasonable practicable to consult at this time
• Is there a LPA, EPA or Deputy who needs to be consulted, are they available
• Has the donor made any statements (verbal or written) about this decision
• Is the decision part of a research programme (other rules may apply)
• Has the donor been encourage to participate, and how mush encouragement has been attempted
• Have all the relevant circumstances been identified, and what are they
• Does the decision relate to life sustaining treatment, are there any views, guidance or conditions made an LPA or other documents from the donor (remembering the decision must not be motivated by a desire to bring about the donors death) nor should any assumptions about the donors lifestyle or quality of life affect such decisions
• Should the decision be referred to the Court of Protection, such as a major medical treatment or other confrontation decision 
• Has this decision already been challenged through the Court of Protection, what was the out come or further directions 
• Would mediation be suitable in resolving any difficulties in deciding what is in the donors best interests  
• Does the donor require an IMCA to be appointed to assist in the decision making process
• Is the decision compliant with section 4 MCA
• Has the decision making progress so far be recorded, allowing justification and criticism

It almost seems easier to consider what is not in the donors best interests, and move from there. To assist decision makers, there is a small, yet growing amount of case law. 

Best interests can be determined by following the criteria laid down in MCA 2005, s.4. These apply to anyone, including attorneys making a decision about a donor who has lost capacity to make that particular decision themselves. This should not be seen as a checklist, but rather as an ongoing responsibility requiring regular reconsideration. Re C v V, Re S and S (Protected Persons) (2008) EWHC B16 (Fam) found there is “...the emphasis throughout the Act on the ascertainment of the actual or likely wishes, views and preferences of the person lacking full capacity, and on involving him in the decision making process.” 

Likewise, just as a person with capacity can withdraw their consent for treatment at any time, so may an attorney withdraw consent for treatment if that is in the donor’s best interests. 

The decision-maker must consider the influence of the donor’s age, appearance, condition and behaviour which might lead others to make assumptions about what might be in their best interests (MCA 2005, s.4(1)). 

‘All relevant circumstances’ must be considered by the decision-maker in arriving at a decision (s.4(2) MCA). Relevant circumstances will vary from case to case and are those of which the decision-maker ‘is aware’ and which it would be ‘reasonable to regard as relevant’ (s.4(11) MCA). 

The Code of Practice encourages decision-makers ‘to try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves’. 

Applying the Mental Capacity Act 2005

Discovering how a donor might take a decision if they were able may be informed by the views of others, such as: 

• a person not concerned with the donor’s care, but who knows them well; 
• people who know them locally or have known them in the past;
• others who know them socially (members of clubs or groups they attended); 
• work colleagues, who can often provide useful information about the person’s preferences. 

Capacity could fluctuate considerably, and the donor might regain sufficient capacity to make some decisions and not others. Supporting evidence should be explored as to the duration of capacity in the past and the rate of reoccurrence. If it appears likely that the donor will regain sufficient capacity at some time in the future for a particular decision, consideration must be given as to when might this be and whether the decision could be postponed until then (s.4(3) MCA). 

The principles of best interests also require that, if challenged, the attorney can demonstrate with examples that they have encouraged the donor to participate in decision-making and considered ways in which the donor may improve their ability to participate as fully as they are able in any acts or decisions taken for them (s.4(4) MCA). 

When the decision relates to life-sustaining treatment, the attorney must show, if challenged, that they are authorised to make such a decision under the LPA and this decision is not motivated to bring about the death of the donor (s.4(5) MCA). 

The attorney would be asked whether they have taken into consideration: 

• past and present wishes and feeling of the donor (s.4(6)(a)); 
• their beliefs and values (s.4(6)(b)); 
• all other relevant factors likely to influence the donor’s decision if they had capacity (s.4(6)(c)); 
• the views of a named person, anyone caring for the donor, any attorney or a Deputy (s.4(7)). 

The attorney is also required to ensure that the following principles under the MCA 2005 are complied with: 

• a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (s.1(3)); 
• they must, so far as reasonably practicable, permit and encourage the donor to participate, or to improve their ability to participate, as fully as possible in any act done for them and any decision affecting them (s.4(4)).

Further Information

• Why make an LPA
• Types of Lasting Power of Attorney
• Sufficient Mental Capacity
• Determining best interests
• Choosing Your Attorney
• Attorney’s Responsibilities
• What can an Attorney do