Key Facts

Best interests decision-making is the process by which decisions are made for people who lack capacity. It is not a purely medical judgement but a holistic assessment that tries to replicate the decision the person would have made if they had capacity.

MCA Best Interests Checklist (Section 4)

1. Do not make assumptions based on age, appearance, condition, or behaviour
2. Consider all relevant circumstances
3. Consider whether the person will at some time regain capacity
4. Encourage the person to participate as much as possible
5. Consider the person's past and present wishes, feelings, beliefs, and values
6. Take into account the views of anyone named by the person, carers, LPA attorneys, deputies
7. For life-sustaining treatment: must not be motivated by desire to bring about death

Who Makes Best Interests Decisions?

• Day-to-day care: care workers, nursing staff
• Medical treatment: treating clinician (usually consultant or GP)
• Serious medical treatment: senior clinician with wider consultation
• Financial decisions: appointed deputy or LPA attorney
• Complex/contested decisions: Court of Protection

Distinction from Substituted Judgement

• UK MCA uses 'best interests' framework (holistic assessment)
• Differs from pure 'substituted judgement' (what the person would have decided)
• But the MCA requires consideration of what the person would have wanted, which incorporates substituted judgement elements

Practical Best Interests Decision-Making

1. Confirm lack of capacity for the specific decision (two-stage test)
2. Gather information: clinical facts, treatment options, risks/benefits
3. Explore past wishes: advance statements, documented conversations, known preferences
4. Consult: family/friends who know the person, LPA attorney, carers, professional team
5. Consider values and beliefs: religious, cultural, personal values that would influence the decision
6. Weigh options: medical best interests balanced with wider welfare interests
7. Choose least restrictive option that meets the person's needs
8. Document: the process, people consulted, factors considered, and rationale for decision
9. Review: best interests decisions should be reviewed as circumstances change

Examples of Best Interests Decisions

• Whether to proceed with surgery in a person with advanced dementia
• Whether to insert a PEG tube for a person in vegetative state
• Whether to provide blood transfusion against a person's known religious beliefs (if no valid ADRT)
• Discharge destination for a person with brain injury
• Whether to administer COVID-19 vaccine to a care home resident lacking capacity

Documentation Requirements

• Capacity assessment (two-stage test, documented)
• Best interests assessment (checklist completed)
• People consulted and their views
• Past wishes/values considered
• Factors weighed in the decision
• Conclusion and rationale
• Plan for review
• Whether IMCA involvement was required

Clinical Management

• Follow the MCA best interests checklist systematically
• Convene a best interests meeting for significant decisions (MDT + family)
• Document everything thoroughly
• Ensure IMCA involvement when required
• Consider whether the decision can be delayed until the person regains capacity
• Choose the least restrictive option

IMCA Involvement

• Must be instructed when:
  • Serious medical treatment is proposed AND
  • Person lacks capacity AND
  • No appropriate person (family/friend) to consult
• IMCA provides independent representation of the person's interests
• IMCA's views must be considered (though not binding)

When Disputes Arise

• Attempt resolution through clinical discussion and mediation
• Seek second clinical opinion
• Involve clinical ethics committee
• Apply to Court of Protection if unresolved
• Court declarations may be needed for: withdrawal of life-sustaining treatment, sterilisation, organ donation from person lacking capacity

Referral Criteria

• Unresolved disagreements about best interests: Court of Protection
• No appropriate consultees: IMCA referral
• Complex ethical dilemma: clinical ethics committee
• Proposed withdrawal of clinically assisted nutrition/hydration: always Court of Protection (per current case law, though this may evolve)

• The best interests framework has been broadly successful in protecting vulnerable adults
• Challenges remain: time-consuming process, difficulty accessing patient's past wishes, family disagreements
• Case law continues to clarify: Aintree v James (2013) - best interests should be patient-centred, not just clinically oriented
• Y v An NHS Trust (2018) - Court of Protection application not always required for CANH withdrawal if medical team and family agree
• Quality of best interests documentation is frequently highlighted as needing improvement in CQC inspections

Best Interests Meeting Attendees

Key Case Law