Best interests

Also called Best interests decision, Section 4 MCA, Best interests meeting

When a person cannot make a decision even with support, the law says how it is made for them, and their own voice is still the first thing to be weighed.

What it is

A best interests decision is a decision made on behalf of a person who has been assessed as lacking capacity for that decision, under section 4 of the Mental Capacity Act 2005 in England and Wales. Scotland's Adults with Incapacity Act uses a similar set of principles, including that the adult's past and present wishes must be taken into account.

It is a process, not a person's opinion. A doctor, social worker or family member who says "I think this is best for her" has not made a best interests decision unless they went through the checklist.

Who it can help

A person who lacks capacity for a specific decision at a specific time, after supported decision-making has genuinely been tried. That includes many people with profound and multiple learning disabilities, people in the later stages of dementia, and people who are unconscious.

It is not for people who can decide but decide something you dislike. An unwise choice made with capacity is the person's to make. And it is never a reason to stop communicating with the person: the checklist itself requires you to keep trying.

How it works

Section 4 sets out what the decision-maker must do. Not make assumptions from the person's age, appearance, condition or behaviour. Consider whether the person will regain capacity and whether the decision can wait. So far as reasonably practicable, permit and encourage the person to participate. Consider their past and present wishes and feelings, especially anything written down, their beliefs and values, and anything else they would have considered. Consult carers, family, anyone named by the person, any attorney or deputy, and an IMCA where one is required.

"Present wishes and feelings" is where communication does its work. A person who cannot weigh the decision can still show you what they want by reaching for it, turning from it, or pressing a card. That evidence must be gathered and it must be given weight. The less restrictive option must be preferred where it works.

Getting started

If a best interests meeting is being arranged for someone you support, ask for the person to be there for at least part of it, and ask what support will be in place for them to participate. Bring their communication passport and anything they have ever expressed about this kind of decision.

Before the meeting, try the options with the person in their own mode. Show two photographs of the two care homes and note the reaction. Offer the two foods. Ask the question with a yes and no system on three separate days. Write down what you saw and bring it, because "she pushed the picture away every time" is evidence of a present wish and it belongs in the decision.

Ask for the written record to show how the person's wishes were sought and what weight they were given. If it does not, it is open to challenge.

Where to get help

The Mental Capacity Act Code of Practice, chapter 5, is the authority. SCIE and Alzheimer's Society explain it plainly. If the person has no family or friends to consult and the decision is about serious medical treatment or a change of accommodation, an IMCA must be instructed. Disputes that cannot be resolved go to the Court of Protection.