Mental Capacity Law Guidance Note
A brief guide to carrying out best interests assessments
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B: Key principles
- s.1(2): a person (P3) must be assumed to have capacity unless it is established that he lacks capacity;
1Useful guidance in relation to the questions that arise in the context of the management of property and affairs (called Making Financial Decisions - Guidance for assessing, supporting and empowering specific decision-making) can be downloaded for free at www.empowermentmatters.co.uk.
- See Section G.
- Strictly, of course, P is not ‘P’ unless they are the subject of proceedings before the
Court of Protection who is alleged to lack capacity to take one or more decisions (Court of Protection Rules 2007, r7), but it is a convenient shorthand.
- s.1(3): P 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(4): a person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- s.1(5): an act done, or decision made, under the MCA for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
- s.1(6): before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
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C: Best interests assessment as a process
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s.4 ‘checklist’ and to come to different views as to where P’s best interests lie; so long as both views were reasonable, both could act upon their beliefs to carry out routine acts of care and treatment safe in the knowledge that they were protected from liability under s.5 MCA 2005.4
- Assessing best interests is therefore a process. It is a process that recognises that a conclusion that a person lacks decision-making capacity is not an “off-switch” for their rights and freedoms.5 It might perhaps best be considered as a process of constructing a decision on behalf of the person who cannot make that decision themselves.6 As the Supreme Court emphasised in Aintree University NHS Hospitals Trust v James7 (a medical treatment case) “[t]he purpose of the best interests test is to consider matters
- So long as, if those acts amounted to restraint, they also satisfied the additional requirements that are imposed by s.6 MCA 2005 – i.e. that the act is necessary and proportionate to the likelihood of P suffering harm and the seriousness of that harm.
- Wye Valley NHS Trust v Mr B  EWCOP 60 at paragraph 11. Hyperlinks in this Guidance Note are to the case comments
in the database maintained by the editors of the 39 Essex Chambers Mental Capacity Law Newsletter. For further useful
resources, see Section G below.
- The concept of ‘constructing decisions’ is one that we have adopted, with gratitude, from the pioneering work of Adrian Ward,
chair of the Mental Health and Disability Committee of the Law Society of Scotland. See, in particular, Chapter 13 of Adrian’s
Adult Incapacity (2003, W Green).
from the patient’s point of view.”8 It is critically important to understand that the purpose of the process is to arrive at the decision that health and social professionals reasonably believe is the right decision for the person themselves, as an individual human being9 – not the decision that best fits with the outcome that the professionals desire.
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8. There are two last important points to emphasise here:
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As the Court of Appeal has emphasised, the defence afforded to health and social care professionals delivering routine acts of care and treatment10 is “pervaded by the concepts of reasonableness, practicability and appropriateness.”11 What will be required to have a reasonable belief as to a person’s best interests in the context of an A&E department at 3:00 am will be very different to what may be required in the context of a decision whether an elderly person with dementia should move from their home of 60 years into a care home.
D: The checklist
Equal consideration and non-discrimination
All relevant circumstances
- Under s.5 MCA 2005 (in some cases read together with s.6).
- Commissioner of Police for the Metropolis v ZH  EWCA Civ 69 at paragraph 40.
- This section draws on chapter 3 of the 4th edition of the Law Society/British Medical Association “Assessment of Mental
Capacity” (2015), edited by Alex.
Permitting and encouraging participation
The person’s wishes, feelings, beliefs and values
14. Try to find out the views of the person lacking capacity, including:
- The person’s past and present wishes and feelings – both current views and whether any relevant views have been expressed in the past, either verbally, in writing or through behaviour or habits.
- Any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question.
- Any other factors the person would be likely to consider if able to do so (this could include the impact of the decision on others13).
- It may not always be possible to identify reliable wishes and feelings. It may also be the case that a person’s past wishes and feelings may be radically different to those that they are now demonstrate. However, as Lady Hale has emphasised: “insofar as it is possible to ascertain the [person’s] wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.”14 Or, as Peter Jackson J has put it: “[t]o state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important.”
- A good example of this is David Ross v A  EWCOP 46, where Senior Judge Lush authorised the payment of P’s brother’s school fees from P’s clinical negligence award in circumstances where it was clear that P’s wellbeing depended in large part upon the wellbeing of her family as a whole.
- Aintree University NHS Hospitals Trust v James  UKSC 67 at paragraph 45.
The views of other people
- anyone previously named by the person as someone to be consulted on the decision in question or matters of a similar kind;
- anyone engaged in caring for the person, or close relatives, friends or others who take an interest in the person’s welfare;
- any attorney under a Lasting or Enduring Power of Attorney made by the person;
- any deputy appointed by the Court of Protection to make decisions for the person.
- For more detail on this debate, see the article by Alex and Cressida Auckland ‘More Presumptions Please, Wishes, Feelings and Best Interests Decision-Making’ (2015) Elder Law Journal 293.
- Not least so as to bring it into greater compliance with the Convention on the Rights of Persons with Disabilities, which is a
profound challenge to the model of decision-making contained in the MCA 2005.
- Indeed, it is arguable that this is required by Article 8 of the European Convention on Human Rights as an aspect of the
requirement to respect the person’s right to autonomy, a right that they do not lose on the loss of decision-making capacity: see A Local Authority v E & Ors  EWHC 1639 (COP) at paragraphs 124 and 125. Applying conventional principles, any interference with a person’s right to respect for their autonomy must be justified on the basis that it is necessary and proportionate.
- At paragraph 45.
- Aintree v James at paragraph 39 – the person undertaking the assessment “must consult others who are looking after him or
interested in his welfare, in particular for their view of what his attitude would be” (emphasis added).
Life sustaining treatment
E: Applying the checklist and documenting the decision
24. For each option, it can be very helpful to set out (with reasons):
- The risks and benefits to P;
- The likelihood of those risk and benefits occurring;
- The relative seriousness and/or importance of the risk and benefits to P.
- Following the well-established ‘balance sheet’ approach identified by Thorpe LJ in Re A  1 FLR 549 at 560.
F: Wider questions
Who determines best interests?
- See, for instance, Re M, ITW v Z, M and Others  EWHC 2525 (Fam).
- See in this regard G v E (Deputyship and Litigation Friend)  EWHC 2512 (COP).
- A person who wishes to carry out an act in connection with the care or treatment of another on the basis of their best interests will only be protected from criminal and civil liability if they are reasonably satisfied that the person lacks capacity in the material regard(s) and that the action to be taken is in the person’s best interests;27
- In very many cases, what will be in the person’s best interests is a decision that will be reached informally and collaboratively between the health or social care professionals (as the experts in their respective disciplines), the person themselves (where this is possible) and the person’s family28 (as experts in the patient), seeking to make the decision that is right for the patient as an individual human being;
- Importantly, however, in the event of a dispute as to what may be in the person’s best interests, the MCA 2005 does not give a special status either to health or 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;
- That the person’s family, friends or advocate family demand a particular course of action as being in the person’s interests does not compel health or social care professionals to offer it if it would not be available if the person had capacity. We return to this below;
- Where the person has made a valid and applicable Lasting Power of Attorney giving authority to an attorney (or attorneys) to take decisions on their behalf, then, whilst it is for health and social care professionals to propose options, the decision as to the person’s best interests is for the attorney (or attorneys), not the health or social care professional. As with a person with capacity, or any family member, an attorney cannot demand an option that health or social professionals have (properly) not put on the table;
- Similarly, where a person has a court-appointed deputy with authority to make the material decision, the deputy can choose on the person’s behalf and in their best interests between the options proposed by the health or social care professionals;29
- These are adapted from an article written by Alex and Ben Troke of Browne Jacobson LLP for the Faculty of Intensive Care Medicine’s Critical Eye July 2015 newsletter.
- Section 5 MCA 2005; where the action will involve restraint, the additional safeguards required by s.6 must be satisfied: are
the actions also necessary and proportionate having regard to the potential of harm to P if they are not (including the likelihood and the seriousness of that harm)?
- Or close friends – i.e. those people ‘properly interested in the person’s welfare’ for purposes of s.4(7) MCA 2005.
- A health and welfare deputy can never have authority to refuse consent to the carrying out or continuation of life-sustaining
treatment in relation to P: s.20(1) MCA 2005.
- Where there is a dispute as to where a person’s best interests lie (or where health or social care professionals have reason to doubt that an attorney or a deputy is making decisions on their behalf in their best interests), the only place to get an authoritative determination of where those best interests lie is in the Court of Protection.
The available options
- A decision by the health or social care professionals as to what options to offer, taking into account the relevant duties upon those professionals (for instance, in the case of social care professionals in England, the duties imposed upon the local authority upon whose behalf they act to assess and meet eligible needs by the Care Act 2014). This is not a best interests decision because it is not a decision that the person themselves would take;
- A best interests decision that is reached by the collaborative process identified above on the person’s behalf as to which option to accept.
- It is ‘best interests plus’ because the question is not merely whether the deprivation of liberty is in the person’s best interests, but also whether it is necessary and proportionate for them to be deprived of their liberty (having regard to the likelihood and seriousness of the harm that they would suffer otherwise): see paragraph 16 of Schedule A1.
- See Charles J in Re NRA & Ors  EWCOP 59 at paragraphs 64-68.
- See, for instance Aintree University Hospitals NHS Foundation Trust v James and others  UK SC 67.
consequence would then be that only the care home would be on offer,33 such that the available options between which a choice could be made on the service user’s behalf would have been unduly constrained.
G: Useful resources
37. Useful free websites include:
www.39essex.com/resources-and-training/mental-capacity-law – database of guidance notes (including as to capacity assessment) case summaries and case comments from the monthly 39 Essex Chambers Mental Capacity Law Newsletter, to which a free subscription can be obtained by emailing firstname.lastname@example.org.
www.mclap.org.uk – website set up by Alex with forums, papers and other resources with a view to enabling professionals of all hues to ‘do’ the MCA 2005 better.
www.mentalhealthlawonline.co.uk – extensive site containing legislation, case transcripts and other useful material relating to both the Mental Capacity Act 2005 and Mental Health Act 1983. It has transcripts for more Court of Protection cases than any other site (including subscription-only sites), as well as an extremely useful discussion list.