What does the Act mean when it talks about ‘best interests’?
One of the key principles of the Act is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s
. That is the same whether the person making the decision or acting is a family carer, a paid care worker, an attorney, a court-appointed deputy, or a healthcare professional, and whether the decision is a minor issue – like what to wear – or a major issue, like whether to provide particular healthcare.
As long as these acts or decisions are in the best interests of the person who lacks capacity to make the decision for themselves, or to consent to acts concerned with their care or treatment, then the decision-maker or carer will be protected from liability.
There are exceptions to this, including circumstances where a person has made an advance decision to refuse treatment (see chapter 9) and, in specific circumstances, the involvement of a person who lacks capacity in research (see chapter 11). But otherwise the underpinning principle of the Act is that all acts and decisions should be made in the best interests of the person without capacity.
Working out what is in someone else’s best interests may be difficult, and the Act requires people to follow certain steps to help them work out whether a particular act or decision is in a person’s best interests. In some cases, there may be disagreement about what someone’s best interests really are. As long as the person who acts or makes the decision has followed the steps to establish whether a person has capacity, and done everything they reasonably can to work out what someone’s best interests are, the law should protect them.
This chapter explains what the Act means by ‘best interests’ and what things should be considered when trying to work out what is in someone’s best interests. It also highlights some of the difficulties that might come up in working out what the best interests of a person who lacks capacity to make the decision actually are. In this chapter, as throughout the Code, a person’s capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made.