LEGAL EAGLE: What are '˜best interests' in dementia decisions?

The Mental Capacity Act 2005 requires any decision made for or on behalf of a person who lacks capacity to be in their best interests. The Act sets out a series of factors which must be considered when deciding what is in a person’s ‘best interests’.

The decision maker must take reasonable steps to find out your mother’s views about the decision in question. This will involve looking at her past and present wishes and feelings. These wishes may have been expressed verbally or in writing or may have been demonstrated through her actions.

The decision maker must also consider any beliefs of values that would be likely to influence your mother’s decision. This could include her religious or moral views.

The decision maker should also consider any other factors which your mother would be likely to consider if she was able to do so. For example this may include how the decision would impact upon other people e.g. her partner or children.

The decision maker must also take into account the views of various other people including ‘anyone engaged in caring for’ your mother or ‘interested in her welfare’. This means that the views of family members, friends and carers (formal or informal) should be sought. It is also likely that these will be the people who know about your mother’s past wishes and her values.

It is up to the decision maker, in this case her social worker, to weigh up this information in order to determine what is in your mother’s best interests. In doing so the decision maker decides what weight should be given to each of the factors above. Often the decision maker will use a ‘balance sheet’ which sets out the advantages and disadvantages of each option.

It is important to note that the decision maker is not required to make the decision which your mother would have made for herself if she had capacity. If a person has capacity they are entitled to make what others may consider to be ‘unwise’ choices. However, the decision maker must make the choice which he/she considers to be in your mother’s objective best interests – her wishes, feelings and values will be important in determining what this is but the decision maker does not have to choose the option your mother would have chosen.

l Ben Hoare Bell LLP has specialist Solicitors who can advise on issues such as this. If you have any queries please contact one of our Solicitors by phoning 0191 565 3112 or email [email protected]. Visit www.benhoarebell.co.uk for more information.