Mental Capacity and Best Interests

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.

Legal Services - Mental Capacity and Best Interests

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 above factors.

At certain times, family members or those involved in caring for the person who lacks capacity may disagree with the decision-maker about 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 decision maker.

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.

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Julie Cornes - Education Law and Community Care Solicitor - Simpson Millar LLP - London

Julie Cornes
Partner, Court of Protection (Capacity & Deprivation of Liberty)

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