When a person lacks mental capacity
Once it has been established that a person lacks capacity to make a specific decision, the Mental Capacity Act
says that anything being
done or any decision being made on behalf of that person, must be done or made in their 'best interests'.
This principle applies whether the decision that needs to be made relates to a life-changing event or an everyday matter.
Best Interests Checklist
The Act does not give a definition of best interests, but it does give a checklist of issues to consider when making a decision
in a person's best
interests. These include, by way of example:
- Considering all the relevant circumstances of the decision being made
- Considering whether the person may regain capacity to make the specific decision and if so, when
- Allowing and encouraging the person to participate as fully as possible in any act or decision being made on their behalf
- Considering the person's past and present wishes, beliefs or values
- Considering the views of other people (for example carers, family members or people named by the person who lacks capacity
as someone that should be
consulted on that decision)
Best Interests Meeting
If a public body, like a local authority social services department or health service, is involved as the decision-maker
on behalf of the person lacking
capacity, it will often hold a best interests meeting where it will reach a decision after considering the
At certain times, family members or those involved in caring for the person who lacks capacity may disagree with the
what is in the person's best interests. It is also possible that family members, partners and carers may disagree between themselves
as well as with the
If all attempts to resolve a dispute have failed, ultimately, an application can be made to the Court of Protection,
the specialist court
which can make a decision in the person's best interests, after considering all the options which are available.
For further information contact us on freephone: 0808 129 3320 or please complete our online enquiry form.