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Best interests

One of the key principles of the Mental Capacity act is that any decision is made in the person’s ‘best interests’.

Making a decision in someone's best interests can be difficult. The Mental Capacity Act 2005 Code of Practice has some guiding principles that you should follow if you're responsible for making a best interest decision for someone who lacks capacity.

Encourage participation

Do whatever is possible to permit and encourage the person who lacks capacity to improve their ability to take part in making the decision.

Identify all relevant circumstances

Try to identify all the things the person who lacks capacity would take into account if they had capacity and were making the decision.

Find out the person's views

Try to find out what the persons views are by taking into account:

  • The person’s past and present wishes and feelings – this may have been expressed verbally, in writing or through behaviours and habits prior to the person lacking capacity.
  • The person’s beliefs, either religious, cultural, moral or political.
  • Any other decision the person may have taken into account prior to losing capacity.

Avoid discrimination

Not make any assumptions based on someone’s best interests simply on the basis of the person’s age, appearance, condition, or behaviour.

Assess whether the person might regain capacity

Some people may regain capacity such as someone who has undergone medical treatment; if so consider whether the decision can wait until then.

If the decision concerns life sustaining treatment

The person responsible for making the best interests decision should not be motivated by the desire to bring about the person’s death and should not make assumptions about the person’s quality of life.

Consult others

Whenever possible, the person responsible for making the best interest decision should consult with as many people involved with the person as possible, as they may have information on the person’s wishes and feelings. People you should consult can be:

  • Anyone who has previously named by the person as someone to be consulted in either the decision in question or on similar issues.
  • Anyone who is caring for the person.
  • Any person appointed under the lasting power of attorney or enduring power of attorney made by the person.
  • Any deputy appointed by the Court of Protection to make decision for the person.

Avoid restricting the person’s rights

Investigate whether there are other options that are less restrictive to the person’s rights.

Take all these factors into account

Weigh up all these factors to help you make the ‘best interest’ decision on behalf of the person.

Last updated: 10/03/2022