Best Interests Decisions for Adults with Impaired Mental Capacity

Written by Hilary Cragg | Care Support Team | 28 March 2024

In the complex landscape of care and legal advocacy, the responsibility of making decisions for adults who cannot make them for themselves due to mental incapacity is both profound and challenging. The Mental Capacity Act 2005 lays down a robust framework for these decisions, emphasising the principle of acting in the best interests of the individual. This comprehensive guide aims to explain the process, offering detailed insights and actionable steps for families and caregivers when disagreements arise.

Understanding Best Interests Decision-Making

The cornerstone of decision-making for individuals with impaired mental capacity is the Mental Capacity Act 2005. This legislation is designed to protect and empower individuals who may not have the capacity to make certain decisions for themselves at the time those decisions need to be made. The Act specifies that any decision made on behalf of someone else must be done with their best interests in mind, taking into account their past and present wishes and feelings, their personal values and beliefs, and any other factors they would have considered were they able to do so.

The concept of 'best interests' is not rigidly defined by the Act, allowing for a flexible approach that can be tailored to the unique circumstances of each individual. This flexibility is crucial, as it enables decision-makers to weigh various factors, including the individual's previous statements, their lifestyle before losing capacity, and their known preferences about medical treatment, living arrangements, and personal care.

However, it's important to note that the Act also upholds the principle of autonomy. If an individual is assessed and found capable of making a specific decision, then they must be allowed to do so without interference, even if the decision is considered by others to be unwise. This underscores the importance of a thorough and respectful assessment process, ensuring that decisions are only made on behalf of those who truly lack the capacity to make them themselves.

The Role of Best Interests Meetings

When it comes to making significant decisions for adults who lack mental capacity, best interests meetings are invaluable. These meetings are designed to be multidisciplinary, drawing on the expertise and insights of a wide range of healthcare professionals involved in the person's care. Typically, attendees include family members, healthcare and social work professionals, legal representatives (such as solicitors, attorneys or deputies), and, crucially, the individual concerned, to the extent that they can participate, unless participation would be too distressing for them.

The primary aim of these meetings is to determine together, the course of action that would best serve the individual's interests. This might involve complex deliberations about medical treatments, living arrangements, social activities, and more. The inclusive nature of these meetings ensures that all perspectives are considered, from the various health and social care opinions that are involved with their care, to the personal insights of family members who know the individual well.

In preparing for and conducting a best interests meeting, it's essential to gather as much information as possible about the individual's preferences, values, and beliefs. This may involve reviewing previous conversations, written statements, and any other expressions of their wishes. The process is inherently person-centered, focusing on achieving an outcome that aligns with what the individual would have wanted, to the best of the meeting participants' knowledge and understanding.

Power of Attorney and Decision-Making Authority

Holding an enduring or Lasting Power of Attorney (LPA) for a loved one is a significant responsibility, granting the attorney the authority to make decisions on the individual's behalf within the scope of the LPA's powers. This can cover a wide range of decisions, from financial matters to health and welfare issues, although EPAs are only relevant for financial matters. However, the role of the attorney is not without its challenges, especially when disputes arise about what is in the best interests of the individual.

In some cases, disagreements may occur between the attorney and healthcare professionals, or among family members themselves, about the most appropriate course of action. While the attorney or deputy has considerable authority, there are limits to their powers. If a dispute about what constitutes the best interest of the individual cannot be resolved through discussion and consensus, it may be necessary to seek a resolution through the Court of Protection, however until the matter reaches the Court, a health and welfare attorney or deputy would be the decision maker.  Without the health and welfare attoenry or deputy, there is usually one nominated decision make from the health and social care sector, who will be identified at the Best Interests Meeting as the decision maker.

The Court of Protection specialises in cases involving individuals with impaired mental capacity. It has the authority to make decisions on a wide range of issues, from personal welfare to financial matters, ensuring that the best interests of the individual are always the primary consideration. In situations where there is a dispute about the best course of action, the court can provide a clear, legally binding decision, based on a comprehensive review of the evidence and the circumstances of the case.  The process of application can take many months and will depend upon the urgency of the matter and the workload of the Court.

Resolving Disputes

Disputes over what is in the best interests of an individual with impaired mental capacity can be particularly challenging, given the emotional and ethical complexities involved. When consensus cannot be reached in a best interests meeting, and the disagreement persists, it may be necessary to escalate the matter to the Court of Protection.

The process of bringing a dispute to the court can be daunting, but it is designed to ensure that the welfare of the individual is protected. The court will consider all relevant information, including medical opinions, the views of family members and caregivers, and any known wishes and preferences of the individual. The aim is to arrive at a decision that best reflects the best interests of the person, which might be what the individual would have chosen for themselves, had they been able to do so, but the Court might also choose to make an alternative decision if they think this would better suit the best interests of the person in question.

How Legal Professionals Can Assist

Hilary Cragg, Partner and Solicitor is an expert in the nuanced and complex field of mental capacity. We offer a comprehensive range of services, from providing initial advice to representing clients in Best Interests Meetings and even in Court of Protection proceedings. Our expertise ensures that the rights and best interests of individuals with impaired mental capacity are vigorously protected and advocated for.

Whether you are navigating the initial stages of appointing an attorney or deputy, facing a challenging decision about a loved one's care, or involved in a dispute that requires legal resolution, we are here to help. Hilary can guide you through the legal process, offering support and representation to ensure that the best interests of your loved one are upheld.

Conclusion

Making decisions on behalf of someone who cannot make them for themselves is a responsibility that requires compassion, understanding, and a deep respect for the individual's autonomy and preferences. The Mental Capacity Act 2005 provides a framework for these decisions, emphasising the need to act in the best interests of the individual while respecting their rights and dignity. By understanding the legal processes involved, and with the support of experienced legal professionals, families and caregivers can navigate these challenging waters with confidence, ensuring that the welfare and preferences of their loved ones are always at the forefront of decision-making.

If you need support, please get in touch

Please contact Hilary for a brief discussion around your options and representation. She’d be delighted to hear from you. You can reach Hilary on 01752 827047 or hcragg@nash.co.uk