Preparing to make a Decision

As Decision Maker you must ensure that you explain your role and responsibilities under the Mental Capacity Act to:

1. The person who lacks capacity; and
2. All those persons to be consulted.

Click here to access guidance about the role and responsibilities of the Decision Maker.

Sometimes your role as Decision Maker may be challenged. If this occurs you should:

1. Seek the support of your line manager as required;
2. Establish the reasons that the person challenging does not feel you are appropriate to act;
3. Review the reasons why you are the Decision Maker to be satisfied that the role is appropriate;
4. Consider any benefit in sharing the Decision Maker role with anyone else (for example another professional); and
5. Consider any need to apply to the Court of Protection.

The Mental Capacity Act Code of Practice sets out the steps that you must take (or at least consider taking) in all cases to ensure that the Best Interests principle is applied when making decisions.

The steps are as follows:

1. Encourage participation of the person;
2. Identify all relevant circumstances;
3. Find out the person's views;
4. Avoid discrimination;
5. Assess whether the person might regain capacity;
6. Consult others;
7. Avoid restricting the person's rights;
8. Take all of the above into account; and
9. In the case of life sustaining medical treatment, make no assumptions about the quality of the person's life and ensure that decisions are in no way motivated by a desire to bring about the person's death.

As Decision Maker it is your responsibility to:

1. Consider all of the steps in the checklist before making a decision;
2. Decide which steps should be taken;
3. Decide how each step should be taken; and
4. Carry out those steps that you have decided need to be taken.

The steps that are taken, and the manner in which they are taken will vary depending on:

1. The specific circumstances and needs of the person;
2. The decision that is to be made; and
3. The urgency of the decision to be made.

Where you decide not to take a particular step there should be clear recorded evidence to explain why it was not deemed appropriate or practicable to do so.

In all cases, wherever it is reasonable and practicable to do so steps should be taken to involve the person who lacks capacity in the decision that is made.

As Decision Maker it is your responsibility to decide how to consult and involve the person in the decision to be made. When doing so you must have regard for the Code of Practice, which states that you must do whatever is possible to:

1. Encourage the person to be involved in the decision that is to be made; and
2. Permit the person to be involved in the decision that is to be made.

The manner in which you consult and involve the person will vary depending on:

1. The specific circumstances and needs of the person;
2. The decision that is to be made; and
3. The urgency of the decision to be made.

You must not make a decision about consulting or involving the person in the decision based solely on:

1. Their age;
2. Their appearance;
3. Their behaviour; or
4. The presence of a particular physical or mental health condition.

You must clearly record:

1. The manner in which you have consulted or involved the person in the decision;
2. The views, wishes, beliefs and values expressed by the person;
3. Information about what is important to them (now and in the future); and
4. Their preferred outcome.

If you decide not to consult or involve the person, or to limit their involvement you must:

1. Ensure that they are represented by a suitable person or an advocate; and
2. Provide clear written evidence of your reasoning.

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.

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, wherever possible this should always be done with the involvement of the person.

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.

The purpose of consulting and involving the person is to understand, as far as is reasonably ascertainable:

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.

You must not proceed to make any Best Interest decision without carefully considering the information gathered from the person during consultation.

Click here to access guidance about how to use information about the wishes and feelings of the person when making a Best Interests decision.

The manner in which you consult and involve the person will vary depending on:

1. The specific circumstances and needs of the person;
2. The decision that is to be made; and
3. The urgency of the decision to be made.

As Decision Maker it is your responsibility to decide how to consult and involve the person in the decision to be made.

The nature of the person's involvement will depend on their ability to:

1. Communicate their views on any matters affecting the decision; and
2. Communicate what their preferred outcome may be.

If the person is not readily able to be consulted or involved in the decision you are required to do whatever is reasonably possible to improve their ability to do so.

The following are just some of the things that you should consider doing to improve the person's ability to participate:

1. Use simple language and/or visual aids to support the person to understand the options;
2. Seek their views at a time and location where they feel relaxed and at ease;
3. Break information down into easy-to-understand points;
4. Use specialist interpreters to communicate;
5. Ask carers or friends to communicate with the person to establish their views, rather than doing it yourself;
6. Appoint an advocate to support and represent the person;
7. Consider delaying the decision to allow the person time to process the information provided to them, or to talk through the options with others;
8. Consider delaying the decision to allow the person to develop their communication skills; and
9. Hold any Best Interest case conference at a time and place that best suits the person and facilitates their involvement.

Many of the steps that should be taken to support a person's involvement during the Best Interests process are the same as those that should be taken if you were supporting them to make their own decision.

You should clearly record the steps that you have taken to support the person to be consulted and involved in the decision.

Sometimes decisions have to be made in circumstances that can be both challenging for the person, but also for the Decision Maker. For example:

1. Following the death of a carer;
2. Following a serious health diagnosis;
3. If the person is anxious about the decision;
4. If the person is likely to respond unfavourably to the decision;
5. If none of the choices available are preferable to the person.

Even though the situation is challenging, you must still do whatever is reasonably possible to permit and encourage the person who lacks capacity to take part in the decision to be made.

Some of the steps that you will need to consider taking include:

1. Providing information and talking about the decision and options in a sensitive way;
2. Considering any emotional support the person may need to be involved; and
3. Considering the benefit of representation to support the person to be involved (through a suitable person or an IMCA).

If the person declines to be consulted or involved in the decision because they find it too challenging or distressing you should:

1. Consider whether the decision can be delayed in order to provide the person with any support they need to be consulted or involved; and
2. If the decision cannot be delayed, explain to them that the decision is one that must be made; and
3. Explain to them that their views and wishes are important; and
4. Encourage them to share their views and think about the decision.

If the person is going to be consulted and involved in the decision that is to be made you must ensure that you provide them with the following information:

1. The nature of the decision to be made;
2. The range of options available;
3. Information about your role as the Decision Maker;
4. Who else is to be involved in the decision; and
5. Whether there is to be a Best Interest Case Conference, and what this involves.

You should also establish whether they want support or representation from a family member, friend or advocate.

Representation must be provided if:

1. The person requests it; or
2. The person is unable to be involved in the decision that is to be made; or
3. The decision relates to providing, stopping or withholding serious medical treatment; or
4. The decision relates to accommodation of the person by the NHS for more than 28 days; or
5. The decision relates to accommodation by the Local Authority for more than 8 weeks; or
6. The decision relates to Deprivation of Liberty Safeguards.

The Mental Capacity Act recognises a range of people whom may be suitable to represent the person during the Best Interest process. These include:

1. Family members;
2. Friends;
3. A Deputy appointed by the Court of Protection;
4. An Attorney;
5. General advocates;
6. Independent Mental Capacity Advocates (IMCA's); and
7. Independent Mental Health Advocates (IMHA's) already supporting a person under the Mental Health Act 1983.

Click here to access further guidance about providing representation, including information about deciding the suitability of family and friends and the circumstances when an IMCA must be appointed.

You must not proceed to make any Best Interest decision without carefully considering the information gathered from the person during consultation.

Click here to access guidance about how to use information about the wishes and feelings of the person when making a Best Interests decision.

As Decision Maker it is your responsibility to decide who should be consulted.

This should always be carefully considered, taking into account:

1. The specific circumstances and needs of the person;
2. The decision that is to be made; and
3. The urgency of the decision to be made.

Wherever practicable, anyone close to the person who may be interested in their welfare should always be consulted. Proactive steps should be taken to identify those people. Normally, this would be:

1. Anyone who the person has asked you to consult with;
2. Anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues;
3. Anyone engaged in caring for the person (paid or unpaid);
4. Close relatives, friends or others who take an interest in the person's welfare;
5. Any Attorney; or
6. Any Deputy appointed by the Court of Protection.

You must clearly record:

1. The manner in which you have consulted others;
2. The views of the person consulted about what may be in the Best Interests of the person; and
3. Any information they have about the views, wishes, beliefs or values of the person.

When not to consult someone

If there is a particular person that the incapacitated person has asked you not to consult with, then you should not consult with that person.

In the case of decisions about life sustaining treatment, you should not consult with any person who is motivated by (or appears to be motivated by) the death of the incapacitated person.

In all other cases, efforts should be made to consult those individuals listed above.

If you decide not to consult someone, you must be able to explain the rationale behind your decision. Always make a clear record of your reasons.

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.

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, it is the responsibility of the carer or other person making the decision to decide:

1. If consultation with others is required;
2. If so, who should be consulted; and
3. How to consult them; unless
4. The circumstances of consultation are clearly set out in a Care and Support Plan, Support Plan or Care Plan.

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.

For the purpose of applying the Best Interest principle, the aim of consulting is very specific. It is purely 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).

You must take steps during consultation with others to ensure that:

1. The privacy of the person is protected; and
2. Information that is not relevant to the decision to be made is not shared; and
3. Information that the incapacitated person has requested remain private is not shared.

You should only consult with those people that you deem it relevant to consult with for the purpose of making a Best Interest decision. Examples of persons it may be relevant to consult with include:

1. Parents, siblings and other family members (regardless of whether they live with the person);
2. Friends of the person;
3. Carers;
4. Paid providers (for example a support worker, a day centre manager or a care home);
5. Social care professionals (for example a social worker or an occupational therapist);
6. Health professionals (for example a community nurse, GP or consultant);
7. An advocate (IMCA or otherwise).

To identify relevant people that it may be appropriate to consult you should:

1. Ask the person who lacks capacity who they would like to be involved in the decision, letting them know that this could be family members, friends, carers or professionals;
2. Speak to their family to establish any family members and informal carers that it may be beneficial to consult;
3. Identify any paid carers and service providers supporting the person, including domiciliary care agencies, day centres and respite providers;
4. Find out which health professionals are involved and the nature of their involvement;
5. Find out which social care professionals are involved, and the nature of their involvement; and
6. Find out if the person has an advocate.

When deciding whether it is relevant to consult with a person, think about:

1. Whether the person who lacks capacity has asked you to consult them;
2. Whether the person who lacks capacity is happy for you to consult them;
3. Whether the person who lacks capacity has asked you not to consult them;
4. In the case of family and friends, whether they appear to have a genuine interest in the person's Wellbeing;
5. Whether the person to be consulted knows the incapacitated person well enough to have a view about what may be in their Best Interests, or what they may want for themselves;
6. Whether the person to be consulted possesses relevant information or expertise to support the decision to be made, particularly around the impact of options upon the person's physical or emotional health and wellbeing.

If you decide not to consult someone, you must be able to explain the rationale behind your decision. Always make a clear record of your reasons.

If an IMCA or other advocate has been appointed you must consult with them and have regard for their views before making a decision about what is in the person's Best Interests.

Who you consult with, and the manner in which you consult will vary depending on:

1. The specific circumstances and needs of the person;
2. The decision that is to be made; and
3. The urgency of the decision to be made.

You may decide:

1. To consult with all person's virtually (via telephone or email);
2. To consult people by meeting them in person;
3. To consult with some person's virtually, and some person's face to face;
4. To consult through a Best Interests Case Conference.

A Best Interests Case Conference

The Best Interests Case Conference is a formal meeting (or series of meetings) that involves:

1. The Decision Maker (whose role it is to co-ordinate and chair the meeting);
2. All persons being consulted; or
3. Some of the person's being consulted (with the views of those not present being shared by the Decision Maker); and
4. The person lacking capacity; or
5. The representative of the person lacking capacity. 

Click here for guidance about the Best Interests Case Conference.

When you have decided who it is appropriate to consult you must ensure that you provide those people with the following information:

1. The nature of the decision to be made;
2. Information about your role as Decision Maker;
3. The purpose of consultation; and
4. The method of consultation that you intend to use (virtual, face to face of Best Interests Case Conference).

You must not proceed to make any Best Interest decision without carefully considering the information gathered from others during consultation.

Click here to access guidance about how to use information gathered from others when making a Best Interests decision.

Representation must be provided if:

1. The person requests it; or
2. The person is unable to be involved in the decision that is to be made; or
3. The decision relates to providing, stopping or withholding serious medical treatment; or
4. The decision relates to accommodation of the person by the NHS for more than 28 days; or
5. The decision relates to accommodation by the Local Authority for more than 8 weeks; or
6. The decision relates to Deprivation of Liberty Safeguards.

The Mental Capacity Act recognises a range of people whom may be suitable to represent the person during the Best Interest process. These include:

1. Family members;
2. Friends;
3. A Deputy appointed by the Court of Protection;
4. An Attorney;
5. General advocates;
6. Independent Mental Capacity Advocates (IMCA's); and
7. Independent Mental Health Advocates (IMHA's) already supporting a person under the Mental Health Act 1983.

Wherever possible you should support the appointment of a family member or friend as the person's representative when:

1. The person has asked it of you; or
2. The person is in agreement with the representation; or
3. The person is unable to agree to the appointment but there is evidence that it would be in their Best Interests; and
4. The family member or friend is willing to represent the person; and
5. The family member or friend appears to have a genuine interest in the person's welfare; and
6. In the case of decisions about life sustaining treatment, the family member or friend is not motivated (or does not appear to be motivated) by the person's death.

Sometimes you may be concerned that a family member or friend wishing to represent the person does not have a genuine interest in the person's welfare because they appear to:

1. Prioritise their own interests over that of the person's; or
2. Be unwilling to explore the full range of options.

If there is evidence to support your concerns you should:

1. Seek the advice of your line manager as required; and
2. Explore alternative options for representation (for example a general advocate or an IMCA).

Without evidence your concerns alone are not lawful reasons to deem anyone unsuitable to represent the person, and the Code of Practice requires you to take reasonable steps to work with family members regardless of any conflicting views they may have.

If, as the Best Interests process progresses it becomes clear that they do not have a genuine interest in the person's welfare you should:

1. Seek the advice of your line manager as required; and
2. Explore alternative options for representation.

Under the Mental Capacity Act you must appoint an IMCA whenever:

1. The decision relates to providing, stopping or withholding serious medical treatment; or
2. The decision relates to accommodation of the person by the NHS for more than 28 days; or
3. The decision relates to accommodation by the Local Authority for more than 8 weeks; or
4. The decision relates to Deprivation of Liberty Safeguards; and
5. There is no Attorney or Court appointed Deputy authorised to make the decision; and
6. There is no suitable family member, friend or other person to represent the person; or
7. A suitable family member or friend is unwilling or feels unable to represent the person.

An IMCA may also be appointed when:

1. The person has asked for advocacy support; and
2. Decisions need to be made as part of a care review; or
3. To support an person (from the age of 18) through the safeguarding process (regardless of whether there is already a suitable representative); or
4. To support decisions about taking part in research.

There are likely to be local variations about the appointment of general advocates and IMCA's to support people who lack capacity to be involved during the Best Interest process. This is because the Mental Capacity Act requires each Local Authority and NHS body to set out:

1. The specific circumstances when it will/will not provide an IMCA; and
2. The arrangements for appointing an IMCA.

You must therefore familiarise yourself with the local arrangements and circumstances for appointing an IMCA.

There are circumstances set out in the Mental Capacity Act when you should not appoint an IMCA. These are as follows:

1. Where there is a suitable family member or friend who is willing and able to represent the person;
2. When there is a Deputy appointed by the Court who is authorised to make the decision; or
3. When there is an Attorney authorised to make the decision.

If a Deputy or Attorney able to make the decision exists it may still be appropriate to appoint an advocate, but this cannot be an IMCA.

Click here to access guidance about the role and function of an IMCA appointed to represent and support a person under the Mental Capacity Act.

If an IMCA or other advocate has been appointed you must consult with them and have regard for their views before making a decision about what is in the person's Best Interests.

As Decision Maker it is important that you:

1. Understand the full range of options available in the situation, even if you do not necessarily think them all viable;
2. Understand and provide relevant information about each of the options to support the weighing up process; and
3. Are open to exploring options identified by others, or as they arise through the Best Interests process.

In order to identify the option that is the least restrictive of the person's rights you should ensure that a range of options are explored.

The Mental Capacity Act can only be used to make a decision about a matter when that matter is something that the person would normally be able to decide for themselves.

This means that:

1. Decisions about which options are available sit outside the remit of the Act; but
2. Decisions about which available option is the most appropriate can be made using Best Interests.

When deciding which options are available options it is important to only provide those that:

1. Are actually available to the person;
2. Reflect the options that would be available to a person who did not lack capacity in a similar situation; and
3. Are within the resources of the person, Local Authority or Health to provide.

It is also important that you do not restrict the number of available options by exerting an overly adverse approach to risk.

When all available options have been established, you must explore each 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.

As Decision Maker it is your responsibility to:

1. Familiarise yourself with any local procedures and forms that you are expected to use when identifying risks and benefits; and
2. If there are no local requirements, decide the process you will use to identify and record the risks and benefits of each available option.

The balance sheet approach is a model used throughout health and social care to identify and record:

1. Risks and benefits; and
2. The impact of each risk and benefit on the person; and
3. The available evidence.

Using a balance sheet to support the process of identifying risks and benefits:

1. Ensures that each available option is considered in the same way;
2. Encourages an evidence based approach; and
3. Can itself be used as evidence of Best Interests decision making during any submission to the Court or challenge.

Click here to access a tri.x balance sheet tool that can be used to support the process of identifying risks and benefits as part of the Best Interests decision making process.

As Decision Maker it is your responsibility to decide how to involve the person who lacks capacity in the process of identifying the risks and benefits of each available option. 

When doing so you must have regard for the Code of Practice, which states that you must do whatever is possible to:

1. Encourage the person to be involved in the decision that is to be made; and
2. Permit the person to be involved in the decision that is to be made.

Click here to access guidance about consulting and involving the person who lacks capacity.

As decision maker it is your responsibility to decide who should be consulted in the process of identifying the risks and benefits of each available option.

If an IMCA is involved you must consult them and consider their views.

If a Best Interests case conference is arranged it is good practice to explore options during the meeting and involve all person's present.

Click here to access guidance about consulting others.

When identifying risks and benefits, and the likely impact of these on the person you must:

1. Base this on available evidence; and
2. Not make a judgement based solely on perceived risk.

Making a judgement that is overly risk adverse can lead to:

1. Options being ruled out when they should not be; and
2. Increased restrictions on the person's human rights.

You should also exercise some caution when describing a potential benefit as 'happiness' or another feeling, unless there is evidence to support such a judgement.

When you are identifying the likely impact of a risk or benefit on the person you should take care to consider both:

1. Tangible impacts (for example the impact on health or finances); and
2. Less tangible impacts (for example, the possible impact on relationships).

You should also consider the impact on the person's human rights, specifically the impact on their liberty and whether an available option is likely to deprive them of this.

If you identify risk (or likely risk) you must consider what can or cannot be done to reduce the risk. If a risk can be reduced then the gravity (or impact) of the risk on the person is also likely to be reduced.