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29th March 2017

A (small) proposed change to how we make best interests decisions

I’ve written already about the proposed new Liberty Protection Safeguards. These will make life a bit easier for providers, by making it the responsibility of the commissioners of services, or the local authority, to start the ball rolling as well as to carry out assessments. It will reduce the numbers of assessments and cut the paperwork pretty significantly.

But it’s important to note that everything in the new draft Bill is up for discussion, and much can change between now and when the final law gets Royal Assent. With everything Parliament’s got to consider about Brexit, we can’t even guess when this draft Bill will get discussed by MPs.

And even when it’s in its final form, it’ll take a while before the Liberty Protection Safeguards come into practice and the deprivation of liberty safeguards (DoLS) are laid to rest. For one thing, there will need to be a new code of practice, to explain how the new law will work in practice.

Suggested changes to the wider Mental Capacity Act

In this series of articles, I want to look at the bit of the suggested new law that’s looking to change how we make decisions under the wider Mental Capacity Act, rather than just replacing DoLS.  These are the parts that will apply to all our work with people who might lack mental capacity for some decisions, rather than only applying when a person is deprived of their liberty.

Here I think our approach should be a bit different, because the changes that are suggested are ways to put into law the ways of caring for people that are best practice already.

Working within the spirit of the new law

This means we might well think about how we can put the spirit of them into practice without waiting for the legal changes.

As well as the Liberty Protection Safeguards, the Law Commission discusses some wider reforms of the MCA that would apply whether or not a person might be at risk of deprivation of liberty.

One of these is to change how we make best interests decisions under section 4 of the MCA.  This is the one I am going to talk about today.

Changes to the best interests checklist

The intention behind these suggested changes is to strengthen the importance of the person’s wishes and feelings in making decisions in their best interests.

Currently, Section 4 of the MCA describes how a decision is to be made in the best interests of the person who lacks the capacity to make the decision for him or herself. It includes a checklist of matters that must be considered, except in an emergency.

The checklist lays out, among other things, that the decision-maker must consider, ‘so far as is reasonably ascertainable’:

  • The person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity);
  • The beliefs and values that would be likely to influence his decision if he had capacity and;
  • The other factors that he would be likely to consider if he were able to do so.

The MCA Code of Practice gives considerable space in chapter 5 to encouraging the person’s participation in decision-making and also doing everything possible to consider their wishes. However, it maintains that there is no hierarchy between different factors and the weight given to them.

The importance of someone’s wishes and feelings

However, judges have emphasised the importance of the person’s wishes and feelings when working out their best interests: as often quoted, Lord Justice Mumby asks the question, ‘what use is it making someone safe, if by doing this you’re making them intensely unhappy?’

And these decisions form a very wide part of our work indeed:  the phrase ‘best interests’ comes from the fourth principle of the MCA, and we know that we must work within these five principles. What this principle says is, ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests’.

The change to best interests decision-making would be to move from the rather passive duty to consider the person’s wishes and feelings where reasonably ascertainable to an active duty to find out the person’s wishes, feelings and values.

This means that decision-makers will not be able to ignore the person’s wishes.

This proposal is further strengthened by a positive duty that, in making the best interests decision, the decision-maker ‘must give particular weight to any wishes or feelings ascertained.’

Implications for practice

  • In making best interests decisions, the current MCA s.4 checklist would still apply, but with a positive requirement to find out what the person wants and would have wanted, in this situation, if they had capacity, and then to pay particular attention to those wishes and feelings when deciding what is in their best interests.
  • This strengthens the existing ‘best practice’ requirement to put the person at the heart of decision-making: it strongly suggests that a decision should not generally be made without an explicit effort to find out the person’s wishes and feelings, and honour them as far as possible.
  • There will be difficulties, as when a person has a serious brain injury and cannot express wishes or feelings, or when someone says different things to different people about their wishes, or when someone’s current and previous wishes and feelings are inconsistent.
  • It’s not always possible to let a person do what they want, when they lack mental capacity. If an elderly person is adamant that her mum is expecting her home for tea, or that she’ll be late for school, it would be clearly wrong to let her go off looking for a home or school that no longer exist, in a situation where she is almost sure to suffer distress and confusion, and may well be at great risk from traffic or from someone who recognises her vulnerability.
  • In such cases, the broader best interests checklist remains a useful tool for reaching a best interests decision. But we must record clearly how we consider every possible way to find out the person’s wishes and feelings, and work within them if we can.

The draft Bill and the report discussing why the different elements are being recommended are here:

http://www.lawcom.gov.uk/wp-content/uploads/2017/03/lc372_mental_capacity.pdf

If you would like to read more about how the Law Commission is thinking about best interests decision-making, see the report sections 14.2 – 14.21 and Recommendation 40.

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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