Since the introduction of the Mental Capacity Act 2005 the determination of a best interest is based on a holistic approach that asks the decision-maker to consider the view and values of the patient and the views of their carers as well as those of other professionals involved (Mental Capacity Act 2005, section 4).
In cases of complex health needs more than one person will be involved in the treatment of the individual. To ensure that the complex needs of the patient are fully considered it will generally be necessary to hold a ‘best interests’ meeting with the professionals concerned and the patient's carers (Department for Constitutional Affairs, 2007). Such meetings are held to meet the requirement in the Mental Capacity Act 2005 code of practice (Department for Constitutional Affairs, 2007) for a proper and objective assessment to be carried out on every occasion when decisions are being considered on behalf of a person who lacks capacity.
Not all decisions involving a person who lacks capacity will be best interests decisions. Decisions by the nursing team as to what care and treatment options are available to the person are considered first (Re MN [2017]). There will then need to be a determination as to which of these treatment options or combination of options is in the person's best interests.
Determining best interests is best viewed as a process whereby a nurse gathers together the relevant information about a person's options for care and treatment, wishes and beliefs, along with the views of carers and other professionals, and constructs a decision on behalf of the incapable person. This reflects the view of the Supreme Court that the purpose of a best interests determination is to consider the matter from the person's perspective (Aintree University Hospitals Foundation Trust v James [2013]).
Decision-makers
Nurses may be required to make decisions or act on behalf of a person who lacks capacity under the Mental Capacity Act 2005. The person making the decision is referred to in the code of practice as a ‘decision-maker’, and it is they who have the duty to determine and act in the patient's best interests (Department for Constitutional Affairs, 2007).
The decision-maker will depend on the context and nature of the best interests decision and whether any of the formal decision-making powers of the Mental Capacity Act 2005 have been taken up. For most day-to-day decisions the decision-maker will usually be the carer most directly involved with the person at the time. Where the decision involves the provision of treatment or nursing care, the decision-maker will usually be the nurse.
Where the incapable person has made and registered a Lasting Power of Attorney for health and care (see Griffith, 2018) or a deputy has been appointed under a Court of Protection order, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority. They will determine best interests and the nurse will approach the designated decision-maker for consent in the same way they would usually approach a capable patient for consent before proceeding with treatment.
Designated decision makers have a duty to make decisions that are in the best interests of the incapable person and nurses can challenge a decision of a designated decision-maker if they do not consider it to be in the incapable person's best interests.
Best interests meetings
Nurses are required to ensure that best interests decisions are made according to the requirements of the 2005 Act's principles (under section 1) and the statutory best interests checklist (in section 4 of the Act and chapter 5 of the code of practice).
To discharge those duties the nurse may need to call a best interests meeting so that the professionals working with the person have an opportunity, along with the family and carers, to inform the best interests decision. A nurse may also call a best interests meeting when what is in a person's best interests is unresolved or a consensus has not been reached between those involved in the person's care. This might include calling a meeting to support a health and care attorney or deputy to make a best interests decision.
Nurses must be aware that a best interests meeting carries no legal authority—only the Courts can give a legally binding best interests decision—but it does demonstrate that the options available to the person have been openly considered and addressed. The meeting allows for a record of the discussions to be taken and used as evidence in Court where necessary.
Chairing and attending the best interest meeting
Best practice suggests that the person who chairs or co-ordinates the best interests' meeting should not be the decision-maker. This ensures transparency and avoids conflicts of interest (Joyce, 2007).
The decision-maker, who must attend the meeting, has a duty to consult with others who are interested in the care and welfare of the person who lacks capacity to seek their views on what they consider to be in the person's best interests. These individuals should be invited to attend together with current care providers and health and social care professionals who can inform the decision-making process. The incapable person should be invited if practical so that they can be encouraged to be as involved as possible in the decision-making process.
Information for those attending
Key information relating to the best interests meeting should be provided in advance of the meeting to enable the information to be considered and a note made of any questions to raise at the meeting. Information provided to attendees should include:
Recording the meeting
It is the responsibility of the chair to ensure that the meeting is accurately recorded. If possible a minute taker should be in attendance to take an accurate record of the meeting and nurses need to be aware that the minutes may need to be submitted to the Court of Protection if a consensus on best interest cannot be reached. The chair will need to check the minutes to ensure that what is recorded is factually correct and clearly represent views of those present at the meeting.
The best interests meeting needs to be structured and recorded in such a way that it is clear who attended and those who were unable to attend, what discussions took place, and what outcomes were agreed. The emphasis must be on an analysis of the risks and benefits attached to the different options and the identification of those responsible for undertaking the agreed actions as well as the timescales within which those actions will be taken (Re MN [2017]).
Disputes
Where the best interests meeting fails to reach a consensus, the nurse may wish to try informal means of settling the disagreement before seeking a decision of the Court of Protection.
The Mental Capacity Act 2005 code of practice, chapter 15, makes suggestions for resolving disputes that include:
If a consensus still cannot be reached then only the Court of protection can give an authoritative binding decision on an incapable persons best interests (Department for Constitutional Affairs, 2007).
Conclusion
Adults with capacity have the right to make their own autonomous decisions about care and treatment even if they are unwise, but nurses have a duty to act in a patient's best interests when that patient has been shown to lack the capacity to make the decision.
In complex cases with several professionals involved in the care or treatment of the person or in cases where a consensus has not been reached on best interests the nurse should arrange a best interests meeting allowing an open, considered discussion of the options available to the patient to decide which would be in that persons best interests. Where the best interests meeting fails to reach a consensus then it may be necessary to seek an order from the Court of Protection.