Appendix 3: The Mental Capacity Act Code of Practice

The full Mental Capacity Act Code of Practice can be found here:

 https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

Below is an extract from the Gloucestershire Multi Agency Mental Capacity Act Policy to explain how Gloucestershire assess for best interest decisions under the Mental Capacity Act (MCA).

Best Interests
When it is established that an individual lacks capacity to make a particular decision, the MCA requires ‘best interests’ as the criterion for any action taken or decision made on that person’s behalf. It should not be the personal views of the decision maker. Instead, it considers both the balanced approach of the pros and cons of the options available for the person and decides what course of action is, on balance, the best course of action for them.

7.1    Who is the decision-maker?
The person who decides what is in a person’s best interests is referred to in the MCA as the ‘decision-maker’. The decision maker is the person who is proposing to take action in relation to the decision.

Under the MCA, many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions themselves in relation to certain things:

• For most routine decisions, this will usually be the person caring for, or supporting the person on a day to day basis
  
  
• For medical interventions, it would be the Doctor or whoever is responsible for carrying out the particular treatment or procedure
  
  
• For social services care plans, the best interest’s decision maker will be the relevant social care professional

An LPA or deputy will be decision maker within the scope of their authority.

7.2    How does the decision-maker decide what is in a person’s best interests?
There is no definition of ‘best interests’ in the MCA. Instead, s.4 of the MCA sets out a ‘checklist’ of factors that the decision maker must apply when determining what is in a person’s best interests (See Appendix 5 The Best Interests Checklist). Staff must follow this checklist when making a best interests decision:

• Encourage Participation - Make every effort to permit and encourage the person to participate in the decision to be made:
  
  
• Identify all relevant circumstances - Identify all the relevant issues and circumstances relating to the decision in question:
  
  
• Find out the person’s wishes, feelings, beliefs and values, past and present:
  
  
• Avoid discrimination - the decision must not be made merely on the basis of the person’s age or appearance, race, religion, sexuality or sex. Show equal consideration and non discrimination,
  
  
• Assess whether the person might regain capacity and if so, whether the decision can be delayed,
  
  
• If the decision concerns life-sustaining treatment, staff must not be motivated in any way by a desire to bring about the person’s death,
  
  
• Consult others: including family and other professionals,
  
  
• Avoid restricting the person’s rights - the decision maker must assess whether there is a less restrictive option,
  
  
• Take all of this information into account when deciding on the best interest decision.
  
  If there is serious disagreement between the decision maker and the person/family members, seek legal support with a view to consideration of a referral to the Court of Protection.