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In the law of England and Wales, best interest decisions are decisions made on behalf of people who do not have mental capacity to make them for themselves at the time the decision needs to be taken.[1] Someone who has the capacity to make a decision is said to be "capacitous". Since 2007, there has been a dedicated court with jurisdiction over mental capacity: the Court of Protection, although it mostly deals with adults. Most applications to make decisions on behalf of a child are still dealt with by the Family Court.
In a medical emergency, the patient may be obviously incapable of making a decision because they are unconscious and treatment cannot be put off. In that case an attempt to give treatment will be lawful if the person giving the treatment believes it is in the patient's best interest.
Where there is doubt about someone's capacity to make a decision but their capacity may improve later, the decision should be deferred if possible. People who experience deliriumoraltered states of consciousness, such as during a urinary tract infection, can temporarily lose capacity. If the person's capacity is unlikely to improve in future—such as people who have relatively severe dementia, certain kinds of brain injury, or a serious learning disability—a mental capacity assessment should be conducted. Mental capacity assessments are specific to each decision, so if a different decision is needed, the person's capacity may need to be assessed again. For example, a person might be able to make a decision about their care or treatment but lack capacity to make a financial decision.
Outside an emergency situation, the decision maker should normally take reasonable steps to consult other relevant people (such as the person's next of kin, other relatives, friends or associates) before making a decision on their behalf. If the decision is complex or fraught and will have reasonably serious consequences, an independent advocate should be appointed.
As of 2024, the main legal framework governing mental capacity in adults is set out in the Mental Capacity Act 2005. The key principles are:-
1. A person must be assumed to have capacity unless it is established that he/she lacks capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.
4. 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/ her best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.[2]
A diagnosis of (for example) dementia, or a learning difficulty, does not necessarily mean the person lacks capacity. A mental capacity assessment should take place when there is an impairment of, or disturbance in the functioning of a person's mind or brain and a decision that needs to be made. The mental capacity assessment checks whether a person can:-
This assessment is made on the balance of probabilities. The person has capacity if they can do all four of these things, and lacks capacity if they cannot do at least one of them.[3] A mental capacity assessment in respect of a lower-level day-to-day decision may be made by a carer or relative and need not be formally recorded, but capacity assessments about decisions that are complex or have important ramifications for the person are made by social workers, doctors or multi-disciplinary teams on behalf of local authorities and clinical commissioning groups, who have a lead role in implementing the Mental Capacity Act and are required to keep formal records.[4]
The decision made in a person's best interests should be the best decision for them. Best interest decisions should promote the person's welfare while respecting their rights, their wishes and feelings, and their freedom. Where there is more than one option that could potentially be in the person's best interests, the decision maker should choose the one that least constrains their liberty ("least restrictive option"). Best interest decisions should not be for the convenience of the person's carers or the decision-maker.
The law assumes that carers and relatives will be able to make lower-level, day-to-day best interest decisions for a person lacking capacity. Generally speaking, a decision would need to involve a social worker or doctor if there is potential disagreement about capacity or what is in the person's best interest, if potentially life-affecting medical treatment is being considered, if abuse or crime is suspected, if significant amounts of money are involved, or if other people might be at risk.[5]
In some circumstances the Court of Protection can grant a deputyship.[6] Deputies may be trusts or people, and if people must be aged 18 or over. They must consent to act as deputy. Once appointed they can make decisions on behalf of the person without capacity, should be consulted on decisions they do not make, and must report to the Office of the Public Guardian (OPG).
An advance decision is made when a capacitous adult gives directions about future decisions that might need to be taken when they are not capacitous. If the advance decision is to refuse a particular treatment, then for the most part that treatment may not be given to them.[7] Advance decisions may be withdrawn at any time while the person has capacity. Unless the person specifies otherwise, their advance decision overrules any decision made by someone with lasting power of attorney.
Advance decisions can only be used to refuse a life-sustaining treatment if the decision is in writing, signed and witnessed, and specifically says it relates to life-sustaining treatments.[8]
Best interests typically, but not always, require that the person is given the best life-sustaining treatment available.
The authorities are all agreed that the starting point is a strong presumption that it is in a person's best interests to stay alive. As Sir Thomas Bingham MR said in the Court of Appeal in Bland, at p 808, "A profound respect for the sanctity of human life is embedded in our law and our moral philosophy". Nevertheless, they are also all agreed that this is not an absolute. There are cases where it will not be in a patient's best interests to receive life-sustaining treatment.
Do not resuscitate (DNR) orders, which are also known as "Do not attempt resuscitation (DNAR)" or "Do not attempt CPR", are decisions made by doctors in a patient's best interests. They are used when the likelihood of success is low and the likelihood of harm is substantial; when CPR might prolong or increase suffering; or if a capacitous patient decides that CPR should not be attempted. There is a presumption that CPR will be attempted unless a DNR is in force.[10]
Apower of attorney is created when a person appoints someone else as their attorney to make decisions on their behalf. The person making the appointment is called the "donor" and the person receiving it is called the "attorney".
Anordinary power of attorney is made by a person who is capacitous, and only lasts while they continue to have capacity. More usually, a power of attorney can be made when the person is capacitous that continues after they lose capacity. The current form is called a lasting power of attorney.[11] It replaces the former enduring power of attorney. (No new enduring powers of attorney can be created, but those that were created before 1 October 2007 can still be registered.)
Enduring power of attorney only applies to the person's finances. The more modern and robust lasting power of attorney can apply either to financial decisions, or health and welfare decisions, or both, depending on what the donor chooses when they set it up.[11]
Someone with lasting power of attorney for health and welfare can make decisions about where the donor should live (e.g. in their own home or in a care home of the attorney's choice), what medical care the donor should receive, what activities they should take part in, and with which people they can have social contact.[12]
Someone with lasting power of attorney for finances, or someone with enduring power of attorney, can make decisions about the donor's money such as paying bills on the person's behalf, investing their money, or buying and selling property. The attorney needs to keep accounts of the donor's money separately from their own household accounts.[12]
Powers of attorney can be registered via a solicitor or directly with the Office of the Public Guardian. There is an application fee. If someone already has power of attorney, but the donor wants to change it, then the donor needs to contact the OPG.[12]
Most parents can make most decisions for their minor children, unless the Family Court decides otherwise. Each Local Authority also has a general duty to safeguard and promote the welfare of children who live in its ambit, and must provide for those children who would not otherwise have adequate accommodation and care.[13] A police constable also has powers to remove children from their parents without a Court Order for up to 72 hours.
Children are said to be Gillick competent when they are capable of making some kinds of independent decision. The terminology comes from Gillick v West Norfolk AHA [1985] UKHL 7.[14]
As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.
The Fraser guidelines come from Lord Fraser's remarks in the same case. They apply specifically to a doctor giving contraceptive advice and medicine to a girl under 16. A doctor can do so:-
"provided he is satisfied in the following criteria:
- That the girl (although under the age of 16 years of age) will understand his advice;
- That he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;
- That she is very likely to continue having sexual intercourse with or without contraceptive treatment;
- That unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;
- That her best interests require him to give her contraceptive advice, treatment or both without the parental consent."
General resource here
overruled by
Mental Capacity Act 2005 Code of Practice (PDF), Department for Constitutional Affairs, 2007, retrieved 25 August 2017
MCA (2005), The Mental Capacity Act 2005, The National Archives, retrieved 25 August 2017
Aintree University Hospitals NHS Foundation Trust v James, British and Irish Legal Information Institute, 2013, retrieved 25 August 2017
Joint statement (2017), Decisions relating to Cardiopulmonary Resuscitation (3rd edition—1st revision), The British Medical Association, the Resuscitation Council (UK), and the Royal College of Nursing, retrieved 26 August 2017
Williams, V; Boyle, G; Jepson, M; Swift, P; Williamson, T; Heslop, P (2012), Making Best Interest Decisions: People and Process, Policy Research Programme, Department of Health, retrieved 26 August 2017
CQC (2011), The Mental Capacity Act 2005: Guidance for Providers (PDF), Care Quality Commission, retrieved 26 August 2017
OPG (2017), Make, register or end a lasting power of attorney, HM Government, retrieved 1 September 2017
Age UK (2017), Powers of Attorney, Age UK, retrieved 3 September 2017
NSPCC (2017), A child's legal rights: Gillick competency and Fraser guidelines, NSPCC, retrieved 3 September 2017
Gillick v West Norfolk and Wisbech AHA, British and Irish Legal Information Institute, 1986, retrieved 3 September 2017
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