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In Your Best Interests Only
One of the key features of the Mental Capacity Act 2005 (MCA) is about making decisions for someone who lacks capacity, in their best interest. So let us explore what best interest actually means. Unhelpfully the Mental Capacity Act does not define best interest but it does give some pointers to how we decide on someone’s best interests. Now the first thing to say is the Act is concerned with the person’s best interest, not anybody else’s. Not the care staff nor the interests of their family or friends. This is one of the features of the MCA that makes it different from say the Mental Health Act that takes a wider view including protecting other people, or having consideration for someone’s welfare. When we’re thinking about best interest decisions being made, we’re thinking about a wide range of interests, not just the person’s medical interest. In the very complex case of Y (Mental Patient: Bone Marrow Donation 1996) the Judge said it was in the best interest of a young learning disabled woman to give a bone marrow donation to her very ill sister. Not because it was in her own medical interests to have a very distressing operation, but because it was in the wider interest of the young woman to maintain good family relationships with her sister and mother. Of course this was a very complex decision about a serious medical treatment, and such decisions are often taken by the Court of Protection of which there is more on later.
So how do we decide what is in someone’s best interest? Section 4 of the Mental Capacity Act gives some guidance as to how we arrive at this decision. First of all we should ask the person. Now hang on, I hear you say, haven’t we decided the person lacks capacity to make a decision so why are we asking them? Well we can get their views and that may give us information about likes and dislikes, their values, their thoughts, their hopes and fears, or anything else that might help us decide what the person wants or would have wanted if we could have asked them when they had capacity. Now we shouldn’t confuse best interest with what the person wants, but it is part of it. If you were the subject of a best interests decision about where you should live, you’d hope people would listen to your views!
The second way we can judge someone’s best interests is to ask their family and friends and others involved in their care. Now I’ve said that best interests decisions aren’t about other people’s interests but family and friends can inform us. So consulting with relatives is not just about finding out what they think should happen, but about the person, their previous wishes, their likes and dislikes and the values that influenced their way of life.
So if we have decided what we think is in the best interests of the person, is that it? Well not necessarily, there are some other considerations which would ‘trump’ our best interests decisions. To help remember what these are, an article in the British Medical Journal (BMJ March 2010) introduces an acronym - BADLIP- to help remember what to consider in making a best interest decision. So here goes:
B is for Best Interest which we’ve covered.
AD is for Advanced Decisions. We need to establish if there is an Advanced Decision to refuse treatment. Essentially an advance decision to refuse treatment has the same effect to refuse treatment as if the refusal was being made today. It must be respected. Now this is a complex and controversial area of the Act, and if someone was thinking about making an advance decision they should really be discussing it with their GP to make proper consideration of the implications. There is no particular form in which advanced decisions should be recorded apart from advance decisions to refuse life sustaining treatment. These should be recorded in writing and signed and witnessed. There are some exclusions to advance decisions, for example you can’t refuse basic nursing care to keep you comfortable, such as being washed or given water. Importantly you cannot make an advance decision to refuse treatment under the Mental Health Act.
There is also something called an advance statement, this is essentially a choice expressed when someone has capacity about their future care, the kind of home they might like to move to, what might happen to their pets etc. These statements aren’t legally binding but hopefully care staff and relatives would try and meet these wishes.
The L stands for Lasting Power of Attorney. Has a Lasting Power of Attorney (LPA) been appointed and registered with the Office of Public Guardian who can make decisions about health and welfare, and about financial and property decisions? These can only be made whilst someone has capacity. I’ve written about LPAs in a previous article titled ‘Making it Last’.
The I stands for Independent Mental Capacity Advocate (IMCA for short). I’ve talked about how family and friends should be consulted when trying to make best interests decisions. So if there aren’t any family or friends around then we might consider consulting an Independent Mental Capacity Advocate. You’ll find in your area there will be an organisation that has been given a contract by the local authority to provide an IMCA service. If a person is facing a decision about serious medical treatment, or about a move into residential care and the person has no family or friends who can be consulted about the decision, then an IMCA must be involved.
Lastly the P stands for Proxy. A proxy means someone else making the best interest decisions, and in particular the Court of Protection. The Court of Protection is a superior court created by the Mental Capacity Act and their role is to determine what is in the best interests of someone who lacks the mental capacity to make a particular decision at a particular time, where there are particular difficulties or conflicts about the persons’ capacity or the decision that that is to be made. The case law example I gave about the bone marrow transplant is a powerful example of the kinds of issue the Court grapples with. If you want to know more about the circumstances in which the Court should be accessed there’s a useful guide published by the Social Care Institute for Excellence (Scie Guide 42 June 2011).
In a previous article about the Mental Capacity Act I wrote about another acronym to remember the test for capacity – CURE (can the person communicate, understand, retain information and evaluate?). So now we have another - BADLIP. Remember ‘CURE the BADLIP’, and you’ll remember the essential points of the Act!
Finally I should mention some best interest decisions that are outside the scope of the Mental Capacity Act, and cannot be made by someone else even if you lack capacity:
- Decisions about family relationships ( see Section 27 of the MCA)
- Decisions about detention and treatment under the Mental Health Act (see Section 28 of the MCA)
- Decisions about who to vote for in an election (see Section 29 of the MCA)
David Beckingham – QCS Expert domiciliary care agencies which specialise in the care of people with mental health problems, doing their best to eliminate the stigma and to offer those in its care respect and dignity at all times.">Mental Health Contributor