Navigating Best Interest Decisions: A Comprehensive Guide
Written by Hilary Cragg | Care Support Team | 28 March 2024
Deciding on the appropriate level of care for critically unwell individuals is fraught with complexity and emotional intensity. This challenging process often involves balancing differing opinions, which can add to the stress and emotional burden faced by families and caregivers.
The BBC drama from 2023, 'Best Interests', poignantly explores these themes through the story of Marnie, a 13-year-old girl with muscular dystrophy. After a severe deterioration in her condition, Marnie is left unconscious and reliant on a ventilator, prompting a heart-wrenching debate among her family and healthcare professionals about the future of her care. This narrative, while fictional, reflects the real and difficult decisions that families across the UK must confront, sparking a broader conversation about the ethics and considerations involved in making best interest decisions.
Understanding the Decision-Makers
In the real world, best interest decisions predominantly concern vulnerable adults, including those with disabilities or the elderly, who lack the mental capacity to make decisions for themselves. These decisions can range from everyday choices about diet and clothing to significant medical and care-related decisions.
Family members, friends, and caregivers often make day-to-day decisions, ensuring the individual's comfort and well-being. However, when it comes to more significant decisions, especially those related to medical treatment, healthcare professionals typically take the lead, unless there is a health and welfare attorney or deputy, in which case they are the decision makers. These professionals are obligated to conduct thorough assessments of the individual's capacity and best interests, adhering to the guidelines set forth in the Mental Capacity Act 2005. For decisions that could have life-altering consequences, such as the initiation or cessation of life-sustaining treatment, a formal best interests meeting is convened. This meeting brings together all interested parties, including family members, healthcare providers, and sometimes legal representatives, to discuss and decide on the best course of action. With regards to decisions regarding life sustaining treatment, if every member of the best interest meeting is in agreement to terminate, then it is unlikely to require referral to the Court of Protection, however if any party disagrees, then the Court will make the final decision.
The Role of Lasting Power of Attorney and the Court of Protection
For individuals who have proactively appointed a Lasting Power of Attorney (LPA) for Health and Welfare, the appointed attorney has the authority to make decisions on their behalf, should they lose the capacity to do so. This legal document empowers the attorney to act in the best interests of the individual, making decisions that align with their known wishes and preferences.
In situations where an LPA is not in place, and a consensus cannot be reached regarding significant care decisions, the matter may need to be escalated to the Court of Protection. The Court of Protection specialises in cases involving individuals who lack the capacity to make specific decisions for themselves. It has the authority to make rulings on healthcare, welfare, and financial matters, ensuring that decisions are made in the best interests of the individual concerned.
The Mental Capacity Act: A Framework for Decision-Making
The Mental Capacity Act 2005 provides a structured approach to making decisions on behalf of individuals who lack the capacity to do so themselves. While the Act does not offer a precise definition of "best interests," it emphasises the importance of considering the individual's past and present wishes, feelings, beliefs, and values. The Act outlines a checklist for decision-makers, which includes:
Considering the individual's wishes and feelings: This involves reflecting on any preferences the individual expressed before losing capacity, as well as their general beliefs and values.
Examining all relevant circumstances: Decision-makers must consider the specifics of the individual's condition, including the nature and prognosis of any illness, the individual's age, and the likelihood of them regaining capacity in the future.
Assessing future decision-making capacity: It's crucial to evaluate whether delaying the decision is feasible, in case the individual regains the capacity to make the decision themselves.
Incorporating the views of others: The opinions of family members, caregivers, and anyone else involved in the individual's care should be considered, ensuring a comprehensive understanding of the individual's best interests.
The Value of Mediation
Mediation offers a valuable alternative to litigation, providing a platform for open dialogue and mutual understanding. This process allows conflicting parties to discuss their perspectives in a structured yet informal setting, facilitated by a neutral mediator. Mediation prioritises communication and aims to find common ground, offering a pathway to resolve disputes amicably and efficiently.
One of the primary advantages of mediation is its ability to give voice to the family and friends of the patient, ensuring their concerns and perspectives are heard. Compared to court proceedings, mediation is generally less costly and can be concluded more swiftly, making it an appealing option for many families.
When Legal Advice is Essential
The journey through best interest decisions is often fraught with emotional and legal complexities. In such situations, seeking the guidance of experienced solicitors can provide clarity and support. Legal experts can offer invaluable advice, helping families navigate the intricate healthcare and legal systems. They can identify potential options and strategies that may not be immediately apparent, ensuring that every possible avenue is explored in the pursuit of the individual's best interests.
Hilary Cragg, a Partner and experienced care solicitor here at Nash & Co Solicitors, is highly experienced in acting and advocating for clients in Best Interests Meetings. Hilary would highly recommend that family consult with her as early as possible in the process, as this can alleviate some of the pressures faced by families, providing them with the knowledge and confidence to make informed decisions. In the challenging landscape of best interest decisions, having a knowledgeable legal team by your side can make a huge difference.
We can help you
Best interest decisions are among the most challenging dilemmas faced by families and healthcare professionals. These decisions require a delicate balance of ethical considerations, legal guidelines, and the individual's known wishes and values. It can often be a very stressful and upsetting time for families, and the last thing that you want is to have to attend a Best Interests Meeting without the backup or knowledge of what’s happening and opportunities that are available to your loved one. If you choose to seek legal advice, then Hilary would be more than happy to discuss your options, support you through your decisions, and offer you legal representation. You can contact Hilary on 01752 827047 or email her at hcragg@nash.co.uk
