Making a Best Interests Decision

A Best Interests decision is a decision made by applying the Best Interest principle, as set out in the Mental Capacity Act 2005.

A Best Interests decision is a decision made for and on behalf of a person who lacks capacity to make their own decision.

A Best Interest decision can only be made when the matter to be decided is a matter that it would normally be within the person's power to decide (and not something that would normally be outside of their control).

A Best Interests decision should, wherever possible reflect the decision that the person lacking capacity would make for themselves.

As Decision Maker, you should make a Best Interests decision when you have:

1. Answered 'No' to the questions in the table below; and
2. Gathered the following information; and
3. Where relevant, taken the following steps.

Answered 'no' to the following questions

Gathered the following information

You must have gathered and understood the following information before making a decision:

1. Where reasonably ascertainable, the past and present views, wishes, beliefs and values of the incapacitated person;
2. The risks and benefits of the full range of available options;
3. The views of everyone consulted about the past and present wishes and feelings of the incapacitated person;
4. The views of everyone consulted about what may be in the Best Interests of the person; and
5. Where involved, the views of any IMCA about all matters relating to the decision. 

Where relevant, taken the following steps

You must make sure that you have considered the following steps, and taken them when you deemed it relevant to do so:

1. Encouraged and permitted the participation of the person;
2. Consulted all those it was deemed relevant to consult;
3. Explored all available options.

You must refer to sections 4,5,6,7 and 8 of this guidance in all cases to ensure that any decision meets the statutory requirements of the Mental Capacity Act;

Examples of Best Interests decisions relating to routine care and treatment include decisions about:

1. How a person should be supported with personal care;
2. How routine medication should be provided;
3. How food or clothing choices should be made;
4. How transfers should be carried out;
5. Routine financial matters;
6. Routine treatment, such as accessing the GP or dentist.

On the first occasion that a decision about routine care or treatment needs to be made the same process should be followed, as it would be for a major or specific decision.

Acts can then be carried out routinely to implement the original decision each time that the care or treatment is required, so long as the manner in which acts should be carried out is:

1. Agreed through applying the Best Interests principle; and
2. Clearly set out in the person's Care and Support Plan, Care Plan or Support Plan.

The person carrying out the act/s to implement the decision on a routine basis must believe there have been no changes to:

1. The relevant circumstances; or
2. The person's wishes and feelings; and
3. That the decision that was made is still in the person's Best Interests; and
4. That the act being carried out to implement the decision is still the least restrictive way of doing so.

Where changes to the above have occurred, or may have occurred steps should be taken to:

1. Formally review the original decision by applying the Best Interests principle; or
2. Review the manner in which the acts implementing the decision are being carried out to make sure that this remains the least restrictive way to achieve the desired outcome.

As part of preparing to make the decision you should have considered whether it was relevant to involve and consult with the person, for the purpose of ascertaining the following information:

1. What their views are on any matters affecting the decision;
2. What is important to them (the relevant factors); and
3. What their preferred outcome may be.

Click here to access guidance as required about the process of consulting with the person.

You are required to use the information gathered through consultation to:

1. Confirm the past and present wishes and feelings of the person; and
2. Consider how to use this information to make a decision under Best Interests.

Wishes

Wishes are the things that a person wants to happen (or not happen) in any given situation.

Wishes may be:

1. Critical, where the person is adamant about what they want to happen and that there should be no deviation in any circumstances;
2. Specific, setting out particular courses of action that the person would wish to take in certain situations;
3. Experiential, related to things that the person enjoys (or wants to enjoy) about life in general.

Wishes may be logical or they may be illogical. They may be within the realm of possibility or they may not be.

Past wishes

Past wishes are the wishes that were expressed by the person before the time that they lost capacity to make the decision.

Evidence of past wishes can be provided:

1. As an Advance Decision to Refuse Treatment (ADRT);
2. As a written statement of other nature;
3. As an email, text or other communication that can be verified as having been written by the person;
4. Through communication by other means; or
5. Through consultation with others who knew the person before they lacked capacity.

Present wishes

Present wishes are the wishes that are being expressed by the person at the time that the decision needs to be made. They include:

1. What their views are on any matters affecting the decision;
2. What is important to them (the relevant factors); and
3. What their preferred outcome may be.

Present wishes:

1. Have to be communicated by the person (it is not possible to 'guess' what they wish for); and
2. Are gathered through direct consultation with the person; or
3. If the person has chosen to communicate their wishes to another person, they can be gathered through consultation with that person.

Feelings are the:

1. Beliefs and values upon which decisions are made; and/or
2. Emotional responses to the range of options available; and/or
3. Emotional responses following a particular decision.

Past feelings

Past feelings are the values and beliefs that influenced the person's decision making before they lacked capacity.

They can be gathered through:

1. Written statements of the person; or
2. Written evidence of previous decision making provided by others; or
3. Verbal communication by the person; or
4. Consultation with those people who knew the person before they lacked capacity.

Specifically, you must seek to understand:

1. The beliefs and values that influenced the persons decision making;
2. The strength of the person's beliefs and values;
3. Any other factors that the person considered important when making decisions;
4. Anything that the person did not value or consider when making decisions.

Present feelings

Present feelings are:

1. The current beliefs and values of the person;
2. Other things that are important to the person now;
3. How they feel about the available options; and
4. What the person's preferred option is.

There are a range of ways that the person can communicate their present feelings, including:

1. Verbal communication;
2. Communication through other means (e.g. pictures or sign language);
3. Behaviour;
4. Facial expressions; and
5. Other gestures.

As Decision Maker it is your responsibility to:

1. Decide how much weight to give to the person's past and present wishes and feelings; but
2. Wherever it is possible the decision that you make should reflect the decision that the person would be likely to make themselves; and as such
3. Wherever possible you should give weight to the person's own wishes and feelings.

Generally speaking, you should give more weight to the person's wishes and feelings when:

1. The person has written their past wishes and feelings down; and/or
2. The person is closer to having capacity than lacking capacity; and/or
3. The person's wishes and feelings are logical and show some understanding; and/or
4. The preferred outcome is possible; and/or
5. The person feels very strongly about their views; and/or
6. The person has expressed a consistent view; and/or
7. The person has not provided differing views to others; and/or
8. The person's behaviour or actions are consistent with the view; and/or
9. The person's past wishes and feelings and current wishes and feelings remain unchanged; and/or
10. Where the person has not communicated their own wishes and feelings, evidence has been provided to support the views of others.

If information about the person's feelings has been communicated by gesture, facial expression or behaviour you should consider:

1. The familiarity of the person that provided the information;
2. How behaviour, facial expressions and gestures are normally used to indicate the person's feelings;
3. How easy it is to predict the person's emotional response to a new situation.

The weight that you give to the person's past and present wishes and feelings must not be influenced by:

1. The nature of the decision to be made;
2. Their age;
3. Their appearance;
4. Their behaviour; or
5. The presence of a particular physical or mental health condition.

You must record:

1. How you have given weight to the person's past and present wishes and feelings;
2. The factors that you considered when deciding the weight to give;
3. If you did not give weight to the person's wishes and feelings (or limited the weight you gave), your rationale for this decision.

Advance Decisions to Refuse Treatment

If the person has prepared an Advance Decision to Refuse Treatment you must give full weight to this, and uphold the original decision made by the person unless:

1. It has been withdrawn by the person; or
2. The person has subsequently appointed an Attorney to make the decision (thus overruling the ADRT); or
3. The person has not acted in a way that is consistent with the ADRT.

When past and present wishes and feelings both exist there are 4 possible scenarios:

1. The person wants the same now as they did in the past; or
2. The person cannot communicate their current wishes and feelings, but their past wishes and feelings are clear; or
3. There are some differences between the person's past wishes and feelings and their current views; or
4. There is a clear conflict between past and present views.

You should always endeavour to make a decision that is in line with the decision the person would have been likely to make for themselves when:

1. The person wants the same now as they did in the past; or
2. The person cannot communicate their current wishes and feelings, but their past wishes and feelings are clear.

If you decide not to give weight to the person's wishes and feelings in either of these situations, you must:

1. Have compelling reasons to justify your decision; and
2. Record the reasons for not doing so in the formal report.

If the person's present wishes and feelings are in direct conflict with their past wishes and feelings it is your responsibility to decide what weight to give to their different views.

Some of the things it may be useful to consider are:

1. Whether the past views were critical views (see above);
2. Whether there is evidence that the person has genuinely changed their wishes, beliefs or values;
3. The likely outcome for the person if weight is given to past views;
4. The likely outcome for the person if weight is given to current views.

In this situation there is often no 'right' or 'wrong' answer, and you should seek the support of your line manager as required.

As part of preparing to make the decision, you should have consulted with anyone it was relevant to consult, to:

1. Gather any information that the person being consulted may have about the past and present wishes, feelings, beliefs and values of the person who lacks capacity; and
2. Ascertain any views that the person being consulted has about what may be in the person's best interests (and the reason for those views).

Click here to access guidance as required about the process of consulting with others.

As Decision Maker, it is your responsibility to decide how much weight to give to the information provided by, and the views of others.

This is with one exception; if there is an IMCA involved you must have regard for their views in all respects.

You must record:

1. How you have given weight to the information provided and views of others;
2. The factors that you considered when deciding the weight to give;
3. Where you decide not to give weight, your rationale for this decision.

Views about the past wishes and feelings of the incapacitated person

You should consider the weight that you will give the views of others when the person that lacks capacity:

1. Has provided a view; and
2. You have decided the weight that you will give to that view; or
3. The person has not been able to provide a view.

In determining what weight to give the views of others you should consider whether:

1. They knew the person before they lacked capacity;
2. The nature of the relationship was such that the person is likely to have been privy to the information;
3. There is any evidence to support what is being said;
4. The views of others corroborates or refutes what is being said;
5. The person appears to be motivated by a genuine interest in the person's welfare; or
6. They are an IMCA (in which case you must give weight to their views).

Views about the present wishes and feelings of the incapacitated person

You should consider the weight that you will give the views of others when the person that lacks capacity:

1. Has provided a view; and
2. You have decided the weight that you will give to that view; or
3. The person has not been able to provide a view.

The views of others can be helpful in:

1. Understanding views that are communicated through behaviour, gestures and facial expressions; and
2. Identifying any inconsistencies in the person's expressed wishes and feelings.

In determining what weight to give the views of others you should consider:

1. The nature of the relationship they have with the person;
2. Whether there is any evidence to support what is being said;
3. Whether the views of others corroborates or refutes what is being said;
4. If person appears to be motivated by a genuine interest in the person's welfare; or
5. Whether they are an IMCA (in which case, you must give weight to their views).

Views about what is in Best Interests

Everyone that is consulted should be asked to:

1. Provide a view about what may be in the person's Best Interests; and
2. Provide a rationale for their view.

In determining what weight to give to the views of others about what may be in the person's Best Interests you should consider:

1. The nature of the relationship they have with the person;
2. Whether their view is based upon evidence, assumptions or risk adversity;
3. If the person appears to be motivated by a genuine interest in the person's welfare;
4. When the view is a professional opinion, whether the person making the view is suitably qualified, experienced and expressing a view based on the relevant circumstances of the person; and
5. Whether they are an IMCA (in which case, you must give weight to their views).

There is often going to be some degree of conflict between the views of the person, or anyone else consulted about:

1. What may be in the person's Best Interests;
2. What the person's past wishes and feelings were; or
3. What the person's present wishes and feelings are.

It is your responsibility to decide the weight that you give to different views, and how you use information to make a Best Interests decision, using this guidance and the support of your line manager.

It is important that you:

1. Consider each view on its own merits;
2. Record why you have given weight to particular views; and
3. Record why you have not given weight to particular views.

Where a decision is being made as part of a Best Interests case conference these conflicts are likely to be aired in the presence of others.

Click here to access guidance about managing disagreement during a Best Interests case conference.

As part of preparing to make the decision, you should have explored each available option in turn, setting out:

1. The risks to the person;
2. The benefits to the person;
3. The likely impact of the risk or benefit on the person; and
4. Options to reduce the level of likely risk.

Click here to access guidance as required about the process of identifying risks and benefits.

As Decision Maker, it is your responsibility to decide how to use information that has been gathered about the risks and benefits of the available options. However, you must be mindful that your approach to risk is:

1. Evidence based; and
2. Positive (not risk adverse).

The following should be clearly recorded:

1. How you have considered risks and benefits when making a Decision;
2. The weight that you have given to different risks and benefits;
3. How you have considered any proposed risk reduction strategies; and
4. How you have considered the views of the person and others.

For each available option, any of the following could apply:

1. A high number of risks/benefits;
2. A low number of risks/benefits;
3. A high likelihood of risk/benefit;
4. A low likelihood of risk/benefit;
5. Risks/benefits that are likely to have a severe impact on the person;
6. Risks/benefits that are likely to have a minimal impact on the person;
7. Risks/benefits that are likely to have a severe impact on others;
8. Risk/benefit that is likely to have a minimal impact on others.

The number and likelihood of risks/benefits

The number of risks or benefits is not in itself an indicator that an available option may, or may not be in the person's Best Interests.

You need to consider:

1. Whether the information about risk/benefit is evidence based; and
2. The likely impact of the risk/benefit for the person; and
3. The likely impact of the risk/benefit for others; and
4. The likely impact of any risk reduction strategies that have been proposed.

The likely impact of the risk/benefit

Likely impact is a much stronger benchmark to use when considering risks and benefits.

The impact of a risk or benefit can be related to:

1. Physical or mental health;
2. Feelings and perceived happiness;
3. Finances;
4. Personal Relationships;
5. Safety;
6. Dignity;
7. Human Rights (specifically the deprivation of liberty)

The likely impact should never be generalised, and should be considered in the specific context of:

1. The relevant circumstances (see above);
2. The person's wishes and preferences;
3. What is important to them;
4. Their beliefs and values; as well as
5. Other factors perceived to be relevant by others.

A factor of magnetic importance

A factor of magnetic importance is an impact for the person that, if they were able to make their own decision would likely outweigh all other factors.

If a magnetic factor exists you should always give weight to this, and if you decide not to make a decision in line with it you must:

1. Have compelling reasons to justify your decision; and
2. Record the reasons for not doing so in the formal report.

When there is a conflict between risk and benefit that is making a Best Interest decision challenging it can be useful to consider the following phrase, originally used by Justice Munby in 2010 and regularly referenced in the Court of Protection;

'What good is it making someone safe, if it merely makes them miserable?'

You must consider what the likely impact of any proposed risk reduction strategies would be for:

1. The relevant circumstances (see above);
2. The level of each risk identified;
3. The level of each benefit identified;
4. The person's wishes, values, beliefs and dignity;
5. The person's human rights (particularly their privacy and liberty).

You should also identify any other risk reduction strategies that may be helpful in:

1. Reducing the level of risk;
2. Increasing benefits to the person;
3. Minimising restriction of the person's human rights; or
4. Making an option more in line with the person's wishes, values and beliefs.

Sometimes the gravitational risks and benefits of a particular option will be the:

1. Risks and benefits to vulnerable adults or children;
2. Risks and benefits to staff; or
3. Risks and benefits to the public.

It is appropriate to consider these risks and benefits when weighing everything up but the preferred option should not:

1. Be decided by the risks and benefits to others; when
2. These outweigh the risks and benefits to the person; or
3. The proposed strategies to reduce risk place restrictions upon the person's rights and freedoms.

In cases where the rights and safety of others appear to be taking precedent over the interests of the person, it is going to be challenging to make a decision that is truly in their Best Interests and you should:

1. Seek the support of your line manager as required; and
2. Consider the need to review any current placement or carer and treatment routine; or
3. Consider the need to seek permission to apply to the Court of Protection to make a decision.

'Weighing up' is the term given to the process of:

1. Evaluating all of the relevant information; in order to
2. Make an objective decision about what is in the persons Best Interests; based on
3. The reasonable belief that it is so.

The following information should be used when weighing up:

1. Information about the person's past wishes and feelings, that you have given weight to;
2. Information about the person's current wishes and feelings, that you have given weight to;
3. The views of others about what may be in the person's Best Interests, that you have given weight to;
4. The impact of available options for the person and relevant circumstances.

The requirement to have regard to all relevant circumstances

All weighing up should be done with regard for the relevant circumstances of the person and their situation.

Click here to access guidance about identifying relevant circumstances.

The requirement to avoid discrimination

Any decision that you make must not be based solely upon:

1. The person's age;
2. The person's appearance;
3. The person's behaviour; or
4. The presence of a particular physical or medical condition.

Neither should a decision be based upon:

1. Your own values or beliefs; or
2. The values or beliefs of others consulted.

The requirement to uphold Human rights and freedoms

The Mental Capacity Act is part of UK Human Rights legislation and any decision that is made must be the decision that is least restrictive of the person's human rights, particularly:

1. Their article 5 rights (the right to liberty); and
2. Their article 8 rights (the right to private and family life).

It is possible for you to make a decision that is likely to deprive a person of their liberty but:

1. You must not do so unless you are satisfied that this is the least restrictive option; and
2. You should not implement the decision; until
3. The proposed deprivation has been authorised through the Deprivation of Liberty Safeguards; or
4. The proposed deprivation has been authorised by the Court of Protection.

It is not lawful for you to make a decision that restricts a person's contact with their family, or with other persons they have a meaningful relationship with. These decisions must be made by the Court of Protection.

Reasonable belief is the threshold upon which Best Interest decisions are made.

Having a reasonable belief that a decision is in the person's Best Interests means that:

1. Having applied the statutory principles of the Mental Capacity Act; and
2. Having applied the relevant steps of the Best Interests checklist; and
3. Having considered and made best use of all the reasonably ascertainable information; you
4. Believe from an objective position that the decision is in the person's Best Interests.

If you have followed due process and the decision that you make is made in the reasonable belief that it is the right one, the Mental Capacity Act provides you with protection should any decision that you make be subject to legal challenge.

Making a Best Interests decision can be challenging. Often there are a range of options that could all be in the person's Best Interests, or a range of views to consider.

If you are finding the process challenging it is appropriate to seek support from:

1. Any IMCA that was involved;
2. The Code of Practice;
3. Your line manager, or a colleague with experience in making Best Interest decisions; or
4. In consultation with your line manager, legal services.

When you feel ready to make a Best Interests decision, the use of a final checklist can help to:

1. Ensure that all statutory requirements are met; and
2. Develop your confidence when making Best Interests decisions.

Click here to access a tri.x Best Interests Decision Checklist tool that can be used as required for this purpose.

A formal record of the decision should be recorded as soon as possible after it has been made.

It is your responsibility to familiarise yourself with any specific local requirements in regards to:

1. The timeframe for making a formal record; and
2. The format for making a formal record.

On the first occasion that a decision about routine care or treatment is made the same process for recording the decision should be followed, as it would be for a major or specific decision.

This must include:

1. How the decision was reached;
2. What the reasons for reaching the decision were;
3. Who was consulted to help work out Best Interests; and
4. What particular factors were taken into account.

All written records of Best Interests decisions should be kept on the person's file.

Where the implementation of a decision and the provision of the routine care and treatment require others to make regular choices in the person's Best Interests, a more proportionate record of decision making can be made.

Examples of choices that may need to be made include choices about:

1. What food to provide the person;
2. The clothing that a person wears;
3. How a person spends their time; or
4. The items that a person routinely buys.

As the Decision Maker it is your responsibility to decide the depth and level of information that is recorded. However, to meet the requirements of the Code of Practice this should be no less than:

1. How the decision was reached;
2. What the reasons for reaching the decision were;
3. Who was consulted to help work out Best Interests; and
4. What particular factors were taken into account.

If it has not been recorded in the person's electronic file you should also record your rationale for:

1. Involving (or not involving) the person who lacks capacity;
2. Consulting (or not consulting) others;
3. Giving weight to (or not giving weight to) the past and present wishes and feelings of the person;
4. Giving weight to (or not giving weight to) the views of those consulted;
5. The way in which you have considered the impact of any risks and benefits;
6. How you decided which circumstances were relevant and which were not; and
7. Any other information that you may be required to provide if your decision is challenged.

The depth of information recorded is likely to reflect the seriousness of the decision that has been made.

You should take steps to notify the following people of the decision that has been made:

1. The person who lacks capacity;
2. Any representative of the person, including any IMCA;
3. Any Attorney or Deputy;
4. Anyone that the person has asked you to notify; and
5. Anyone else that you deem it relevant to notify, either with the person's consent or in their Best Interests if they lack capacity to consent.

There is no legal requirement to provide a copy of the formal record of the Best Interests decision to anyone else. However, you should consider providing it to:

1. Any joint Decision Maker;
2. The person who lacks capacity;
3. Any IMCA that is involved;
4. The Court of Protection at their request; and
5. Any other person you deem it relevant to receive a copy, with the consent of the person or in their Best Interests if they lack capacity to consent.

Sometimes the person who lacks capacity, or any other person consulted may challenge the decision that you have made.

Click here to access guidance about how to respond to such a challenge.

The next step after making a Best Interest decision is to:

1. Consider how best to implement the decision; and
2. Implement the decision.

Click here to access guidance about implementing the decision.

This guidance should be used a supplementary guidance (and not comprehensive guidance) for those Clinicians or health professionals making a Best Interest decision in the context of life sustaining treatment.

It should be used alongside:

1. All other areas of this Mental Capacity resource,
2. The Mental Capacity Act Code of Practice;
3. Any other professional guidance that exists in the area of life sustaining treatment; and
4. Any local guidance or requirements.

A Clinician or other health professional with relevant knowledge and experience in providing life sustaining treatment should act as Decision Maker unless:

1. There is an Attorney authorised to make the decision; or
2. There is a Deputy appointed by the Court of Protection authorised to make the decision.

If there is a Attorney or a Deputy authorised to make the decision they should make it unless:

1. Through necessity or unforeseen circumstances they are not able to make the decision; or
2. In the case of Deputies the Court of Protection has granted permission for them to delegate the decision; or
3. In the case of Attorneys the LPA specifies that the decision is one they can delegate.

Click here to access guidance about action you should take if a Deputy or Attorney declines to make a decision that they are authorised to make.

If the Attorney or Deputy is a family member or friend of the person who lacks capacity you must be satisfied that they:

1. Will not make assumptions about the person's quality of life; and
2. Are in no way motivated to bring about their death.

If you have concerns about a Attorney of Deputy's ability to make the decision you should take steps to report concerns to the Office of the Public Guardian. The OPG is responsible for monitoring how Attorneys and Deputies make decisions, and it will investigate all complaints about the practice of registered Attorneys and Deputy's.

Whether a treatment is life sustaining depends on both:

1. The nature of the treatment; and
2. The particular circumstances in which it is being prescribed.

It is the responsibility of an appropriate health professional to make a judgement about whether or not the treatment is life sustaining.

In cases of life sustaining treatment you must determine the existence of any valid Advance Decision to Refuse Treatment before making a decision under Best Interests.

If there is a valid ADRT that states out the current circumstances and the person's wishes in the situation it must be upheld unless:

1. It has been withdrawn by the person; or
2. The person has subsequently appointed an Attorney to make the decision (thus overruling the ADRT); or
3. The person has not acted in a way that is consistent with the ADRT.

Current Ethical Dilemma

There is currently some debate about how to apply a valid ADRT refusing treatment when the patient, who now lacks capacity, expresses a view to receive treatment at the point that it is needed.

There appear to be 2 options for Decision Makers:

1. To interpret the person's views as an act that is inconsistent with the ADRT,  thus invalidating it;
2. To make a Best Interests decision, and balance the past and present wishes of the person to decide whether to provide treatment.

It is acknowledge that even if a decision were made that life sustaining treatment was not in the Best Interests of the person it be deemed unethical to deny treatment to a person who is asking for it at the point that it is needed.

It is hoped that further case law in this area will provide clarity, but at the moment the Decision Maker must:

1. Make a decision about the validity of the ADRT; and
2. Decide how to weigh up the past and present wishes of the person; and
3. Decide whether to provide treatment; or
4. Apply to the Court of Protection to make the decision.

If a valid ADRT does not exist, you must consider the existence of any other written statement by the person that sets out their wishes and feelings about the life sustaining treatment to be provided, sustained, withdrawn or withheld.

If a written statement exists you must:

1. Give weight to views expressed in the written statement;
2. Weigh up the views with all other relevant circumstances; and
3. Wherever possible, make a decision that is line with the written statement; or
4. Record a compelling rational for making a decision that is not in line with the written statement.

When deciding whom it is relevant to consult you must not:

1. Consult; or
2. Give weight to the views of;
3. Anyone who is motivated by (or appears to be motivated by) a desire to bring about the death of the person who lacks capacity.

When deciding what is in the person's Best Interests you must not make any assumptions about the person's quality of life.

This means you must not:

1. Generalise based on the circumstances of previous patients;
2. Make a judgement about quality of life that is based upon the person's age, disability or other discriminatory factor;
3. Have a view based on your own values and beliefs, or those of others about what quality of life is agreeable (or not).

Instead you must have regard to:

1. The relevant circumstances of the case;
2. The past and present wishes and feelings of the person; and
3. Wherever possible, make a decision that is in line with the decision the person would have made themselves (if they had capacity).

The Code of Practice states that in general terms:

1. All reasonable steps which are in the person's Best Interests should be taken to prolong life; and that
2. There will only be a limited number of cases where treatment is futile, overly burdensome for the person or without prospect of recovery.

This is not meant to discourage Decision Makers from deciding that withdrawing or withholding life sustaining treatment when it is clearly in the person's Best Interests, but rather to ensure that such a decision is not made lightly.

If a decision is made to withhold or withdraw life sustaining treatment and this decision is challenged by a family member, Attorney, Deputy or representative of the person:

1. The decision must not be implemented; and
2. An application should be made to the Court of Protection to review the decision; unless
3. The decision relates to urgent medical treatment to save life; or
4. The decision relates to urgent medical treatment to prevent serious harm; and
5. You are satisfied that a valid Advance Decision to Refuse Treatment (ADRT) does not exist.

Urgent decisions regarding life sustaining treatment should be managed in the same way as urgent decisions for all matters.

Click here to access guidance about making urgent decisions.

The Mental Capacity Act is part of UK Human Rights legislation and any decision that is made must be the decision that is least restrictive of the person's human rights, particularly:

1. Their article 5 rights (the right to liberty); and
2. Their article 8 rights (the right to private and family life).

It is possible for you to make a decision that is likely to deprive a person of their liberty but:

1. You must not do so unless you are satisfied that this is the least restrictive option; and
2. You should not implement the decision; until
3. The proposed deprivation has been authorised through the Deprivation of Liberty Safeguards; or
4. The proposed deprivation has been authorised by the Court of Protection.