By Katherine Miller

Determining whether a person can make decisions for themselves is extremely important, especially when the person concerned is disabled or vulnerable. The ability to make your own choices and decisions is referred to as mental capacity. The Mental Capacity Act 2005 (MCA) sets out the important principle which states that we must always presume that someone has the mental capacity to make decisions for themselves unless it can be proven that they lack the ability to do so.

Our previous blog outlines how a professional can determine if a person has the mental capacity to make certain decisions and how to support that person in doing so, this can be viewed here. This article covers what factors to take into consideration when a person can’t make decisions for themselves.

Best interests

If all steps have been taken to determine mental capacity to make a particular decision and it is found that a person’s mental capacity is lacking, the MCA sets out who, and in what circumstances, other people can make decisions for that person.

The ‘decision maker’ will then be able to make the decision in question and the MCA states that “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/her best interests”.

The decision maker

The decision maker will depend on the type of decision to be made and the particular situation and they could be a carer, health professional, an attorney under an Enduring Power of Attorney or Lasting Power of Attorney or a Deputy under a Court of Protection Order.

For example, if the decision relates to an everyday matter, such as what clothes to wear or what activity to do, the decision maker is likely to be a family member or carer.  If the decision is more complex, such as where to live or what medical treatment to receive, it is common for the decision maker to be a professional, perhaps a social worker or Doctor.

The process for decision making

To assist a decision maker, the MCA sets out the process for making a decision on behalf of a person who lacks mental capacity and this is often referred to as the ‘best interests checklist’.  These are the factors that should be followed when making a decision on behalf of someone else:

  • Is it possible that the person may regain capacity? If so, you need to consider if a decision can wait until such time.
  • Encourage participation. Wherever possible you should take steps to enable and encourage the person to be involved in making the decision. This may not be an option in an emergency situation.
  • Try to find out the person’s views. This should include their past and present views on the particular issue and could include any written information or views that were expressed verbally or by their previous behaviour.  It is important to take any religious, cultural and moral beliefs into account as these could influence the decision.
  • Consult others. It might be necessary to consult with other people about their views on what is in a person’s best interests.  This might include involving family members, carers, close friends or those interested in the person’s care or any appointed person, such as an Attorney or Deputy.
  • Do not discriminate. The decision maker must not determine what is in a person’s best interests merely on the basis of the person’s age, appearance, condition or behaviour.
  • Identify all the relevant circumstances. The decision maker should include all factors that the person would have taken into account if they were making the decision themselves.
  • Avoid restricting the person’s rights. Explore whether there are other options that are less restrictive on the person.

The exceptions

There is an exception to the best interests principle; if a person has made a valid advance decision to refuse medical treatment then treatment must not be given, even if others think it would be in the person’s best interests to receive the treatment.

There are also some excluded decisions which can’t be made for another person. These include the decision to get married, to consent to sex or to vote.

The full checklist is set out in the MCA Code of Practice.

When a decision is being made, it is advisable for the decision maker to consider recording the process, particularly for more important decisions or where the decision might be questioned.  The record should include the issue to be decided, the reasons for the decision, details of who was consulted and what they said and what other factors were taken into account.

Please do not hesitate to contact us to discuss your own situation.


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