Many people will have watched the recent BBC drama ‘Best Interests’. This told the story of the parents of Marnie who were faced with the heart-breaking decision to cease their daughter’s life-sustaining treatment, when her physical condition deteriorated due to complications arising from Muscular Dystrophy. Medical professionals advised it was in Marnie’s best interests to stop treatment, but her parents challenged this position and the dispute was escalated to the Court for a resolution. The drama showed the trauma faced by the family and all those involved in Marnie’s care and the rollercoaster of emotions they went through. This was an extreme and thankfully relatively rare example of the Best Interests process needing Court intervention. The term “best interests” is very familiar to Court of Protection and mental capacity specialists, such as those in the Boyes Turner Court of Protection team. Those who have been granted delegated authority to act on behalf of a vulnerable person, under the Court of Protection as an Attorney or Deputy, or as a Trustee, have to make a range of best interests decisions each day on behalf of our clients who lack mental capacity to do so themselves. The Mental Capacity Act 2005 (MCA) states, ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests’. Section 4 of the MCA formalises the duties of a person who makes a decision where they reasonably believe another person lacks mental capacity to make that decision. To summarise: Each decision requires separate consideration, with the primary thought being whether the person has the capacity, with any necessary support or encouragement, to make the decision for themselves or whether they may regain capacity at another time when this decision could be made. A lack of capacity must not be assumed based on the person’s age, appearance or behaviour. A decision should only be made on behalf of the person when they lack capacity to make the specific decision under consideration. The person’s past and present wishes, feelings, beliefs and values should be considered. The views of others caring for or interested in the person’s welfare and those appointed formally (attorney or deputy) should be ascertained and considered. The decision taken should be the least restrictive option for the person involved. The information gathered should be weighed up to determine what is in the person’s best interests. The more complex the decision the more thought should be given to each step and more evidence of the decision-making process should be recorded. Some decision makers (especially professionals) follow a checklist of things to be considered. Some decisions are precluded from being made on behalf of another person and these include, amongst others, consent: To marriage/civil partnership To have sexual relations To the making of an adoption order Under the Human Fertilisation and Embryology Act 1990 The MCA enables the court to make an order to withdraw life sustaining treatment, as was shown in the ‘Best Interests’ drama, but due to concerns that euthanasia was being ‘legalised through the back door’, section 62 clarifies that nothing in the MCA changes the law relating to assisted suicide, murder or manslaughter. Best interests decisions can relate to any aspect of our clients’ lives and can be made under formal authority, such as a Court order, or by agreement from a collective of decision makers when formal authority does not exist. Court authority can be granted for either property and financial affairs, health and welfare issues or both and decisions are subsequently made for a huge variety of reasons. Financial decisions can range from whether to purchase a property on behalf of our client, to deciding whether to change their energy suppliers. Every time a decision is required under delegated authority a process must be followed to determine that it has been made in the person’s best interests. Looking back over just the past fortnight, our team has been involved in making property and finance best interests decisions for clients relating to the purchase of a new wheelchair, instructing a new physiotherapist, exchanging contracts on a property over £1million and arranging a new utility provider. The best interests decision making process is robust and allows decisions to be made for a person without capacity, whilst keeping them, their wishes, feelings, beliefs and needs at the forefront of the decision at all times. Our Court of Protection team at Boyes Turner has the specialist knowledge to make all of those decisions in the most-inclusive and person-centred way possible. For further information, please contact the Court of Protection team on 0800 124 4845 or email us.
