Best Interests Decisions

Under the Mental Capacity Act 2005, "best interests" is a multifactorial test. It is not simply a matter of what is medically or clinically optimal. Decision-makers must consider:

• The person's past and present wishes and feelings — things they have said, written, or expressed when they had capacity, as well as any preferences or distress observable now;
• The person's beliefs and values — their religion, culture, ethical views, and any known preferences;
• Other relevant factors the person would be likely to consider if they could;
• The views of family members, carers, and others who know the person well (though their views are not determinative).

Best interests decisions must also follow the least restrictive principle — where two options both achieve the desired purpose, the one that is less restrictive of the person's rights and freedom must be chosen. For example, a care home placement should only be chosen over home care if home care cannot safely meet the person's needs.

Different people make best interests decisions in different contexts:

• Healthcare professionals make best interests decisions about medical treatment and clinical care on a day-to-day basis — doctors, nurses, and therapists regularly make such decisions without court involvement;
• Social workers and care managers make best interests decisions about care arrangements, placements, and care plans;
• LPA attorneys make decisions within the scope of their LPA when the person lacks capacity;
• Deputies appointed by the Court of Protection make decisions within their deputyship order;
• The Court of Protection makes or authorises decisions in serious or disputed cases.

When there is no attorney or deputy, and no family member available to consult, the decision-maker must still follow the best interests process — and may need to consult an Independent Mental Capacity Advocate (IMCA) where the decision involves serious medical treatment or a change of accommodation.

Disputes about best interests decisions — particularly between family members and professionals, or between family members themselves — are unfortunately not uncommon. If professionals and family cannot agree on what is in the person's best interests, the options are:

• Mediation — A neutral mediator can help parties reach agreement. NHS England and many ICBs have processes for clinical ethics consultation which can support this.
• Court of Protection application — For serious or unresolvable disputes, an application to the Court of Protection can result in a judicial determination of what is in the person's best interests.

Families who believe professionals are not acting in the person's best interests should raise concerns formally — with the healthcare provider, through the complaints process, and if necessary through the Parliamentary and Health Service Ombudsman or Local Government and Social Care Ombudsman.

If you are a family member of someone who lacks capacity, you are likely to be consulted during best-interests decision-making. Here is how to make your involvement effective:

Gather and share evidence of prior wishes. Any document in which the person expressed views about their care, treatment, or living arrangements while they had capacity is important. This includes advance statements, emails, letters, notes made by GPs or social workers, diary entries, or conversations witnessed by others. Memories of what the person said about specific scenarios are also relevant and should be recorded in writing and shared with decision-makers.

Ask to be included in best-interests meetings. The MCA Code of Practice requires decision-makers to consult anyone "engaged in caring for the person" or "interested in their welfare." This includes close family members. You have the right to attend and contribute — if meetings are being held without you, raise this formally with the responsible professional or institution.

Challenge decisions that appear to ignore the person's known wishes. If a best-interests decision seems to contradict what you know the person would have wanted, write to the decision-maker setting out the evidence of their wishes and requesting a review. If this does not resolve the matter, complain to the provider, the ICB, the council's adult social care director, or the relevant ombudsman. The Court of Protection remains available as a last resort for unresolvable disputes.

Understand what "best interests" does not mean. It does not mean "what I as a family member want." It does not mean "whatever the professionals say." It requires a genuine balance of objective and subjective factors, with the person's own wishes and values given the greatest possible weight consistent with their overall safety and wellbeing.