Best Interest Decision Making

1. @mcadorset #mcaconference10 Best InterestDecision Making • Rachelle Rowe • Val Cope • Maggie Miller

2. Session Aims…….. To consider how to approach Best Interest Decision making to ensure that our practice is fully compliant with the Mental Capacity Act and to keep the person at the centre of the process.

3. A person must be assumed to have capacity unless it is established that they lack capacity. A person is not be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made in his/her best interests. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. Five Statutory Principles of the Mental Capacity Act

4. The term ‘Best Interests’ is not defined in the Act. Mainly because there are so many different types of decisions and actions covered by the Act, and so many different people and circumstances are affected by it. • The Best Interests Checklist is a list of common factors that must always be considered by anyone who needs to decide what is in the best interests of a person who lacks capacity. • Decision Makers must take into account all relevant factors that would be reasonable to consider not just what they think are important. They must not act or make a decision based on what they would want to do if they were the person who lacked capacity. What does the Act mean by Best Interests?

5. Section 4 Mental Capacity Act Best Interests Checklist • In determining what is in a person’s Best Interests the person making the determination must not make it merely on the basis of:  • the persons age or appearance or • a condition or aspect of his behaviour • The Decision Maker must consider all the relevant circumstances and he must consider whether it is likely that the person will at some time have / regain capacity and when

6. The Decision Maker must take all reasonable and practicable steps to encourage the person to participate, or improve her ability to participate as fully as possible in decision making (Principle 2). • When the decision relates to life sustaining treatments the Decision Maker must not be motivated by the desire to bring about death. • Section 4 • Best • Interests • Checklist

7. You must consider, so far as is reasonably ascertainable: • the person’s past and present wishes and feelings (and in particular any written statements made by her when she had capacity) • the beliefs and values that would be likely to influence her decision if she had capacity • other factors that she would be likely to consider if she was able to do so • Section 4 • Best Interests Checklist

8. The Decision Maker must take into account if it is practicable and appropriate to consult them, the views of: • anyone named by the person as • someone to be consulted on the • matter in question • anyone engaged in caring for the • person or interested in his welfare • any donee of a lasting power of • attorney granted by the person and • any deputy appointed for the person • by the court, as to what would be in • the person’s Best Interests • any IMCA appointed to represent • the person • Section 4 • Best Interests Checklist

9. Where DCC have Deputyship for finances

10. You MUST consult! • You must still consult with people even if they hold views you don’t agree with or where there are difficult relationships with professionals. • Mind P’s right to confidentiality and only disclose information to consultees if this is in P’s best interests.

12. Recording • Use the balance sheet • Include all views including dissenting ones • Use organisational templates where available

13. Please discuss….. • Mrs. B, aged 54, married with two grown-up children. • Past breast cancer, secondaries now. Estimated six months to live. • Admitted to A&E following a paracetamol overdose. Her capacity was not formally assessed. • Expressed wish to die, refusing parvolex treatment which would reverse effects of paracetamol overdose and doctor respected this so transferred to hospice urgently. • Immediate medical concern on arrival over capacity re: treatment. Husband distraught saying she had been depressed recently. Family had been trying to persuade her that she could enjoy a good quality of life in her last few months with them. • Assessed as lacking capacity to make this decision due to mental disorder, namely depression, preventing her from being able to use, or weigh, any information about the impact of treatment on her remaining life and the consequences of refusing it. • Consider how you will use S4 Best Interests • Checklist to reach a decision at the meeting

14. Doing what the person wants is vitally important • Most people still know what they want even if they don’t have capacity to understand the full consequences • If someone wants to do something then we should be facilitating it, if at all possible. • This should be our starting point and there have to be compelling reasons and evidence to do anything other than this.

15. Exclusions from Best Interests Decisions • Consenting to marriage or a civil partnership • Consenting to a sexual relationship • Consenting to a decree of divorce on the basis of two years separation • Consenting to a child being placed for adoption of making an adoption order • Consenting to a dissolution of a civil partnership

16. Exclusions from Best Interests Decisions Cont.. • Discharging parental responsibility for a child in matters relating to the child’s property • Giving consent under the Human Fertilisation and Embryology Act 1990 • Mental Health Act matters (Section 28) • Voting on behalf of someone

18. What does the Court of Protection say? • Westminster City Council v Sykes [2014] EWHC B9 (COP) (24 February 2014) • Lifelong campaigner for moral, political and ideological issues • Dementia diagnosis aged 89 • Living Will in 2006 prioritising life quality and to remain at home • POA for Property & Finances set up with a friend. • 2013 - Section 2 MHA due to self neglect, severe weight loss, unhygienic/hazardous living conditions, wandering and refusing care.

19. 2013 discharged to nursing home with DoLS applied • Health stabilised - POA felt that wishes should be respected but expected home would fail causing her distress. • CoP District Judge Eldergill supported her wish to return to her own home on trial period, acknowledging the trial may fail - that’s the point of a trial. • “the local authority should be her servant, not her master” • Judge Eldergill 2014

20. HIV Case AB, Re [2016] EWCOP 66 • Woman contracted HIV in 2000. Fully engaged and voluntarily sought ongoing anti-retroviral treatment 2008 - developed serious psychotic disorder, deemed irrecoverable. • Powerful delusions – belief not HIV+ but is a participant in a film about HIV. • At the time of the hearing she was therefore strongly opposed to HIV treatment and refusing. • Lacking capacity due to effect of psychotic symptoms. • Justice Mostyn was “perfectly satisfied” that with capacity, “she would unquestionably enthusiastically embrace treatment”. The Court authorised covert treatment in her best interests as this “will save her”.

21. SR v A Local Authority [2018] EWCOP 36 • Couple married for 58 years. Wife developed dementia and attended day centre. Professional concerns over husband’s views on euthanasia and risk to his wife. • Decision taken that 24 hour residential care in best interests. Admitted and DoLS authorised. • Wife’s strongly expressed wish to remain living with husband. • LA and care home restricted husband from taking his wife alone but no CoP application made. • S21a DoLS appeal to CoP by Relevant Person’s Representative.

23. Any Questions? Mental Capacity Act Team Dorset County Council County Hall, Dorchester, DT1 1XJ Tel: 01305 225650 Email: mcateam@dorsetcc.gov.uk www.dorsetforyou.com/mental-capacity-act

24. Conclusion Thank you for coming Please complete the online evaluation form, you will then receive your certificate