Best interests (section 4)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:matters to considerBest interests:considerationsBest interests(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:written statements, andBest interests:wishes and feelingsBest interests:participation in decision-makingBest interests:matters to considerBest interests:life-sustaining treatment, andBest interests:future developmentsBest interests:consultationBest interests:beliefs and valuesBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:matters to considerBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:weight to be attached to factorsBest interests:matters to considerBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:reasonable belief, andBest interests:matters to considerBest interestsSubstituted judgment:best interests, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:substituted judgmentBest interestsSubstituted judgment:best interests, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:substituted judgmentBest interestsSubstituted judgment:best interests, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:substituted judgmentBest interestsSubstituted judgment:best interests, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:substituted judgmentBest interestsSubstituted judgment:best interests, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:substituted judgmentBest interestsSubstituted judgment:best interests, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:substituted judgmentBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:treatment, andBest interests:safety, andBest interests:health, andBest interests:care, andBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:liberty, andBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:wishes and feelings:objectivity, andBest interests:wishes and feelingsBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:wishes and feelings:objectivity, andBest interests:wishes and feelingsBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:wishes and feelings:objectivity, andBest interests:wishes and feelingsBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:wishes and feelings:patient’s point of viewBest interests:wishes and feelings:objectivity, andBest interests:wishes and feelingsBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:wishes and feelings:relevant circumstancesBest interests:wishes and feelings:objectivity, andBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:wishes and feelings:objectivity, andBest interests:wishes and feelings:balance sheetBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beBest interests:wishes and feelings:objectivity, andBest interests
3.65If it is the case that the relevant person is unable to make their own decision, then by definition unless the decision can be postponed someone else must make it for them.
3.66The decision made for them must be made in their ‘best interests’. The MCA 2005 provides that one must not determine what is in a person’s best interests merely on the basis of their age or appearance, or a condition of theirs, or an aspect of their behaviour, which might lead others to make unjustified assumptions about what might be in their best interests.
1MCA 2005 s4(1).Matters to consider
3.67The person making the determination must consider all of the relevant circumstances. Rather unhelpfully, the Act says that ‘relevant circumstances’ are those which the person determining best interests is aware of and which it would be reasonable to regard as relevant.
2MCA 2005 s4(11). However, the person making the decision must in particular consider the matters set out in the table on the next page.
3.68As to the five considerations in the table:
1)The first of them differs from the second guiding principle, which stated that a person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
Even if the person cannot presently make their own decision (even, for example, with the assistance of family members and simple, clear explanations) and so lacks capacity to decide the matter, one must consider if and when they are likely to have that capacity.It may be that with more time to reflect, further treatment, improved health, reduced medication levels, clearer explanations and the benefit of discussing the options with family members, trusted friends or an advocate, they are likely to develop or recover the capacity to decide.If so, this must be considered when deciding what is in their best interests. Depending on the urgency, it may be in their best interests to postpone the decision until they can make it for themselves.
2)The second makes a different point to that made by the second guiding principle. The point here is that, if the person cannot make their own decision because all practicable steps to help them to do so have failed, they must still be permitted and encouraged to participate in the decision-making process and any act done on their behalf. This is, of course, provided that this is reasonably practicable.
3)The third consideration draws attention to five matters:
i)the person’s present wishes and feelings;
ii)the person’s past wishes and feelings;
iii)the beliefs and values that would be likely to influence their decision if they had capacity;
iv)any relevant written statement made by the person when they had capacity (this could be a written statement about the treatment which the person wishes to receive rather than to reject);
v)the other factors that they would be likely to consider if they were able to do so.
4)Provided that it is practicable and appropriate, the fourth consideration imposes a requirement to consult carers, nominated persons and persons appointed under the MCA 2005 about the person’s wishes, feelings, beliefs and values, and the factors which they would have been likely to take into account if they still had capacity to make their own decision.
Clearly, family members and non-professional carers will often know much more than the professionals about the person’s wishes, feelings, beliefs, values, life goals and views concerning care and treatment. Proper consultation and sharing of information is critical to building up a true picture of the person’s best interests.
5)The final listed matter provides that any person determining whether life-sustaining treatment is in the best interests of the person concerned must not be motivated by a desire to bring about their death. This legal requirement ties in with section 62 which states that nothing in the Act constitutes a defence to a charge of manslaughter or murder or is to be read or taken as legalising or authorising assisted suicide.
BEST INTERESTS CONSIDERATIONS (MCA 2005 s4) |
The person determining what is in the person’s best interests must in particular (MCA 2005 s4(2)): |
1 | Consider whether it is likely that the person will at some time have capacity in relation to the matter in question and, if it appears likely that he will, when that is likely to be (MCA 2005 s4(3)). |
2 | So far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him (MCA 2005 s4(4)). |
3 | Consider, so far as is reasonably ascertainable, the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity); the beliefs and values that would be likely to influence his decision if he had capacity; and the other factors that he would be likely to consider if he were able to do so (MCA 2005 s4(6)). |
4 | If it is practicable and appropriate to consult them, take into account the views of the following people: •anyone named by the person as someone to be consulted on the matter in question or on matters of that kind; •anyone engaged in caring for the person or interested in his welfare; •any donee of a lasting power of attorney granted by the person; and •any deputy appointed for the person by the court as to the matters mentioned in paragraph 3 and what would be in the person’s best interests (MCA 2005 s4(7)). |
5 | Not be motivated by a desire to bring about his death where the determination relates to life-sustaining treatment and considering whether the treatment is in the best interests of the person concerned (MCA 2005 s4(5)). (‘Life-sustaining treatment’ means treatment which in the view of a person providing healthcare for the person concerned is necessary to sustain life: s4(10)). |
3.69None of the listed considerations has automatic precedence.
3See ITW v Z [2009] EWHC 2525 (Fam), (2009) 12 CCLR 635, per Munby J (as he then was) at para 32. This would be impossible given that the person determining best interests must also consider any other (unlisted) relevant considerations of which he or she is aware.
3.70The weight to be attached to the various factors depends on the circumstances of the particular individual. A feature or factor which in one person’s situation may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight. Sometimes one or more features or factors may be of ‘magnetic importance’ in influencing or even determining what is in the person’s best interests.
4ITW v Z at para 32.3.71The person who determines best interests does not incur any legal liability for their determination simply because a court later comes to a different view. The Act provides that there is sufficient compliance with section 4 if, having complied with the requirements of the section, the person ‘reasonably believes’ that what they do or decide is in the best interests of the person concerned.
5MCA 2005 s4(9). Unless one takes a peculiarly authoritarian view, in many situations more than one belief can reasonably be held. It is quite possible that family members and/or members of the multi-disciplinary team may ‘reasonably’ believe something different.
Best interests and substituted judgment
3.72To what extent must the aim of the person determining best interests be to identify and make the decision which they believe the person themselves would have made if they had, or still had, capacity to make it?
3.73‘Substituted judgment’ is a principle which holds that surrogate decisions should be made by establishing as accurately as possible the decision which the incapacitated person would have made for themselves if they had capacity.
3.74The Law Commission argued that ‘best interests’ on the one hand and ‘substituted judgment’ on the other were not in fact mutually exclusive. It favoured a ‘best interests’ criterion which contained a strong element of ‘substituted judgment’.
6Law Com No 231 para 3.25.3.75A main reason for rejecting a pure substituted judgment test was not that the views, beliefs and values of an incapacitated person were unimportant but that they are important:
One of the failings of a pure ‘substituted judgment’ model is the unhelpful idea that a person who cannot make a decision should be treated as if his or her capacity were perfect and unimpaired, and as if present emotions need not also be considered.
7Law Com No 231 para 3.29.3.76One must take into account and give weight to the person’s present wishes and feelings, and what they now view as important, and not just the values and beliefs which they held when they had capacity, even if more objective.
3.77Furthermore, as the Commission noted when rejecting a pure substituted judgment approach, if a person has never had capacity then ‘substituted judgment’ is impossible and there is no viable alternative to a best interests approach.
8See further in this regard Re Jones [2014] EWCOP 59.Safety, health, care, treatment and liberty
3.78It must not be assumed that because the decision concerns care or medical treatment that therefore the person’s care and medical treatment, and physical safety, are the most important considerations. There will usually be many other competing factors to consider, such as a person’s attachment to their home, their privacy and sense of security at home, their attitude towards institutional life and the importance to them of their freedom.
3.79The importance of individual liberty is of the same fundamental importance to incapacitated people who still have clear wishes and preferences about where and how they live as it is for those who remain able to make capacitous decisions. This desire to determine one’s own interests is common to almost all human beings. Society is made up of individuals, and each individual wills certain ends for themselves and their loved ones, and not others, and has distinctive feelings, personal goals, traits, habits and experiences. Because this is so, most individuals wish to determine and develop their own interests and course in life, and their happiness often depends on this. The existence of a private sphere of action, free from public coercion or restraint, is indispensable to that independence which everyone needs to develop their individuality, even where their individuality is diminished, but not extinguished, by illness. It is for this reason that people place such weight on their liberty and right to choose.
Wishes, feelings and objectivity
3.80The fact that the individual’s past and present wishes, feelings, beliefs and values must be considered tells us that this is not a sterile objective test of best interests.
3.81It is not a case of trying to determine what some hypothetical objective or rational person would decide in this situation when presented with these choices. Nor are we seeking to do anything more sophisticated than impose on the individual an objective and rational analysis based on professional expertise of what they ought sensibly to do in that situation.
3.82The law requires objective analysis of a subject not an object. The incapacitated person is the subject. Therefore, it is their welfare in the context of their wishes, feelings, beliefs and values that is important. This is the principle of beneficence which asserts an obligation to help others further their important and legitimate interests, not one’s own.
3.83That this is so is emphasised by Lady Hale in the
Aintree case:
9Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, (2013) 16 CCLR 554 at para 45.Finally, insofar as Sir Alan Ward and Arden LJ were suggesting that the test of the patient’s wishes and feelings was an objective one, what the reasonable patient would think, again I respectfully disagree. The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. In this case, the highest it could be put was, as counsel had agreed, that ‘It was likely that Mr James would want treatment up to the point where it became hopeless’. But insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.
3.84It also emerges from various decisions of the President of the Court of Protection. Naturally, precisely how much weight to give to a person’s present wishes and feelings will depend on the particular context and the individual’s circumstances. The relevant circumstances will include the degree of their incapacity; the strength and consistency of their views; the possible impact on them of knowing that their wishes and feelings are not being given effect to; the extent to which their wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation; and the extent to which their wishes and feelings, if given effect to, can properly be accommodated within the overall assessment of what is in her best interests. However, while the weight to be attached to the person’s wishes and feelings will always be case-specific and fact-specific, their wishes and feelings will always be a significant factor to which the court must pay close regard.
10ITW v Z [2009] EWHC 2525 (Fam), (2009) 12 CCLR 635, per Munby J at para 35.3.85The drawing up of a ‘balance sheet’ in personal welfare cases, listing the actual and potential advantages and disadvantages of each alternative,
11Re S (adult’s lack of capacity: carer and residence) [2003] FLR 1235. should not be a dry accountant’s exercise which omits what is personal, but one that includes the ‘personal’ element of ‘personal welfare’.
3.86Whatever weight is given to the person’s wishes and feelings, it is imperative not to reformulate them and claim to know better than they do what they truly wish, feel or will; in other words, not to be an ‘aesthetic bully’.
12Care must be taken not to treat humanity as the raw material upon which the professional imposes her or his creative will, for the last century exposed the dangers of this way of thinking. It is, Berlin suggested, a form of thinking to which the scientist may be especially prone; for if, as Comte believed, scientific method will in due course reveal all truths, then what case is there for freedom of opinion or action, at least as an end in itself, and why should any conduct be tolerated that is not authorised by appropriate experts? See Sir I Berlin, Four essays on liberty, OUP, 1969, pp150–151.