What is ‘best interests’?
The MCA puts the person’s past and present wishes and feelings at the heart of decision making. The MCA also says that decision makers must think about the person’s beliefs and values and how they might influence that person’s decision making, along with anything else the person might take into account if they were able to make a decision for themselves.
Anyone who is responsible for making a best interests decision for a person who can’t make that decision for themselves, must speak to others before doing so. The decision maker must speak to anyone that person has previously said should be included in any decisions about them, and anyone who is caring for them or interested in their welfare. This includes care workers, informal carers, family and friends, for example. These are the people who are likely to know the person best, and who will be able to give information about what the person might want, to support the decision making process.
Deciding what might be in a person’s best interests is sometimes a balancing act between decision makers choosing what the person might want if they could decide for themselves, and choosing what is likely to be best for the person, considering their overall wellbeing and safety. Although it’s not always decisive, significant weight should be given to what the person themselves would probably decide to do, if they could.
In some cases, a person may already have made the decision that needs to be made, in advance. An Advance Decision to Refuse Treatment or ADRT, if it is valid and applies to the situation that has prompted the need for a decision, must be respected. A valid and applicable ADRT means the person has already made the decision for themselves and recorded it, so there is no best interests decision to be made on their behalf.
You can read more about ADRTs here.
Who makes best interests decisions?
The decision-maker is a person who holds the legal authority to make the decision that needs to be made, such as someone holding a valid power of attorney or a court appointed Deputy. You can read more about Attorneys here and about Deputies here.
If there is no appointed decision maker such as an Attorney, a decision will need to be made by a relevant professional. This is usually the professional that says a decision is needed; for example, a doctor who thinks that the person needs some treatment that the person lacks capacity to decide about. Sometimes a group of professionals will make a decision together, but there should always be a clearly identified professional who is accountable for the decision and who makes sure the decision is recorded. The record of the decision should show clearly what the decision is, who has been part of making it, and why the decision has been made in one way or another.
You can read our local best interests decision template to understand more about how we record a best interests decision.
Whoever is making the decision – an appointed decision maker such as an Attorney or Deputy – or professionals – must take into account the views of others when they do so. And as far as possible, they must encourage the person who the decision is about to contribute to making it. People involved might be asked to give their views separately, or at a shared meeting.
If you want to understand more about making decisions for young people preparing to become adults you may find this guide from the Department of Health and Social Care useful: Making finance decisions for young people: parent and carer toolkit – GOV.UK (www.gov.uk)
What if there is a dispute about a best interests decision?
Sometimes there is disagreement about what is in a person’s best interests. Everyone involved should try hard to resolve any differences. In difficult cases where no agreement can be reached, it might be necessary to apply to the Court of Protection for a decision on the person’s behalf. There are likely to be costs attached to going to court.
If you are not sure where to look for help with a concern about best interests decisions, you can contact the Experience Team. Find out more about how the Team can help you here.
Page last updated: 10 Nov 2023