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I’m on my way to a meeting
The Mental Capacity Act 2005 allows us to make decisions for people who lack the mental capacity to make that decision, as long as we make the decision in the person’s best interest. The Mental Capacity Act doesn’t provide a definition as to what someone’s best interests are, but gives some pointers as to the kind of information we should take into account, such as the person’s previous wishes or what their family and friends think. But at the end of the day it’s a professional judgement by the decision maker that counts. Remember the Mental Capacity Act is decision specific, so if the decision is something like what a care home resident is going to wear that day (if they don’t have the mental capacity to decide that themselves) then the care assistant helping the person in the morning is the decision maker. If the decision to be made is whether the person should have a blood test to investigate a problem, then the doctor will be the decision maker. What if the decision is more difficult than that?
Best interest meetings
I’ve been delivering some training recently about the Mental Capacity Act, where participants talked about how useful it has been to attend a meeting or case conference to consider the person’s best interest when there has been a difficult decision to make, such as whether to discharge someone from hospital where there may be doubts about their ability to cope at home. There’s nothing wrong with that – it can be very useful practice to help arrive at a more balanced view of someone’s best interest. We usually call these a best interest meeting. This involves getting the care team members to share information, to arrive at a best interest decision that can be recorded and referred to later on. So what do we need to consider if we are involved in planning a best interest meeting? A publication prepared by the British Psychological Society is a very useful guide as to how to structure best interest meetings.
Inviting the participants
The first issue to be decided is who is going to be there? Of course, best interest decisions are not just to be considered by the paid carers; it is important to have an input from family members they can give their views as to what they think should happen. Those views might not be the person’s ‘best interest’ - the decision makers have got come to a view on that - but it’s important to know what the family think. If there is a real conflict of views we need to be able to identify these and work out how we are going to resolve the conflict. It is also important to hear the family’s opinions because they are likely to have a lot of information about the person. Their views, values and beliefs, the things they liked and the ways they coped with difficult decisions can be used to inform decisions now: what decision would the person have made when they had capacity? We need to be aware that different family members might have different views, and should question whether there is anybody else who we should hear from – the close friends of the person, for example. Most importantly, has the person appointed a Lasting Power of Attorney, in which case their view is crucial? If key participants can’t attend, then either the date should be re-arranged or the meeting chair should ensure that their views are gathered in some other way.
Purpose of the meeting
We need to know what the purpose of the best interest meeting is. Remember the Mental Capacity Act is decision specific; what is the decision to be made? There may be more than one decision to be made, for example, moving from one care home to another, and then making restrictions on the person in the care home. Let’s break the meeting down to cover those two decisions; the introduction to the meeting should identify the decisions to be made, as well as introduce the people who are there.
In arriving at what is in the person’s best interest, we have no definition in mental capacity law to tell us what that means. What mental capacity law does tell us is the information sources we need to use to arrive at the decision; that includes information regarding the person, as well as everyone else concerned with their care. This will be the major section of the meeting – the information gathering stage.
The balance sheet approach
At the end of the day, or the end of the meeting, a best interest decision is a balance of judgement. The meeting should consider alternative strategies. What are the consequences of each of these? Are there risks and benefits to each alternative? Which is the least restrictive alternative, whilst at the same time being safe? These should be balanced. Of course, the discussion should be recorded, so why not write down what’s on the balance sheet?
Making the decision
The idea of a meeting to make a best interest decision is about achieving a consensus. There is no provision or description of best interest meetings to make decisions in the Mental Capacity Act - that is down to the decision maker. It is important, even though you might be having a meeting, to try and identify who is the ultimate decision maker. After all, there may be disagreements at the meeting.
In the chair
The question of who should chair the meeting is a difficult one. It may, but not necessarily, be the person who is identified as the ‘decision-maker’. It may be that the person’s role, for example, care home manger or social care team manager, means they are best placed to act as chair. It may be that their experience and skill at managing meetings means they are the best person. Part of the introduction to the meeting should be to clarify the role of the chair. I suggest that should be about chairing the meeting to ensure the purpose is clear, that all participants are able to contribute, that a best interest decision is arrived at, and ensuring the discussion and decision are recorded in writing. Chairing a best interest decision meeting doesn’t carry a casting vote or veto!
David Beckingham – QCS Expert Mental Health Contributor