If it has been decided that a person is unable to make a decision for themselves, the MCA says all decisions made must be in a person’s best interests.
The MCA sets out a checklist to consider when deciding what is in a person’s best interests. The checklist includes:
Your organisation may have specific policies and procedures with a checklist document that you have to follow and complete. It will incorporate the above checklist. Ask your colleagues or manager what the agreed ways of working are in your organisation for making and documenting best interests decisions.
Under the Act, many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves.
The person making the decision is referred to as the ‘decision-maker’.
It is the decision-maker’s responsibility to work out what would be in the best interests of the person who lacks capacity.
| For most day-to-day actions or decisions, the decision-maker will be the carer most directly involved with the person at the time. |
| Where the decision involves the provision of medical treatment, the doctor or other member of healthcare staff responsible for carrying out the particular treatment or procedure is the decision-maker. |
| Where nursing or paid care is provided, the nurse or paid carer will be the decision-maker. |
| If a Lasting Power of Attorney (or Enduring Power of Attorney) has been made and registered, or a deputy has been appointed under a court order, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority. |
Less restrictive alternative
Before somebody makes a decision or acts on behalf of a person who lacks capacity to make that decision or consent to the act, they must always question if they can do something else that would interfere less with the person’s basic rights and freedoms. This is called finding the ‘less restrictive alternative’. It includes considering whether there is a need to act or make a decision at all.
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