Where a person lacks capacity and there are concerns about their safety and well-being, or where decisions need to be made for them, those decisions are made (in most cases) by a responsible authority in consultation with relevant family members or carers. It is best practice, particularly where the issues are complex or there is any chance of dispute, for a best interests meeting to take place so that all parties can try to reach a decision in the person's best interests.
The Act sets out that the person making the determination of what is in someone's best interests must not make it merely on the basis of the person's age or appearance or a condition of theirs or an aspect of their behaviour, which might lead others to make unjustified assumptions about what might be in their best interests.
The person making the determination must consider all the relevant circumstances, which are those of which the person making the determination is aware and which it would be reasonable to regard as relevant.
The person making the determination must also consider:
- Whether it is likely that the person will at some time have capacity in relation to the matter in question, and
- If it appears likely that they will, when that is likely to be.
They must also, so far as reasonably practicable, permit and encourage the person to participate, to improve their ability to participate, as fully as possible in any act done on their behalf and any decision affecting them.
The Act further provides that the person making the determination must consider, as far as is reasonably ascertainable,
- The person's past and present wishes and feelings
- The beliefs and values that would be likely to influence their decision if they had capacity, and
- The other factors that they would be likely to consider if they were able to do so.
The person making the determination must also take into account, if it is practicable and appropriate to consult them, the views of:
- Anyone named by the person or someone to be consulted on the matter in question or on matters of that kind.
- Anyone engaged in caring for the person or interested in her welfare
- Any done of a lasting power of attorney general granted by the person; and
- Any deputy appointed for the person by the court
Steps should always be taken to determine the ability of the individual to make decisions, or parts of decisions for themselves, and to express their wishes. If they are unable to do so, someone needs to be available to represent their interests; if a family member or carer is not able to take this role, then an Independent Mental Capacity Advocate (IMCA) should be appointed to ensure that the person's wishes are obtained and that they are represented in any meetings or proceedings.
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