Determining the patient’s best interests

The focus should be on what the patient would consider his/her best interests, not what the doctor would consider his/her best interests if he were in the same position

When a patient lacks the capacity to consent to, or refuse, medical treatment, the doctor concerned will have to decide what is in the patient’s best interests (see Box 8). In doing so, the focus should be on what the patient would consider his/her best interests, not what the doctor would consider his/her best interests if he were in the same position.

The guidance in Box 9 is taken from the Mental Capacity Act Code of Practice and should prove useful to anyone having to determine a patient’s best interests, regardless of whether the Act applies in their country.

In England and Wales, if a patient lacks capacity and has no-one (other than paid workers) to represent his/her interests, an Independent Mental Capacity Advocate (IMCA) must be consulted whenever serious medical treatment or a change of accommodation is being contemplated.

In Scotland, when non-emergency treatment is considered to be in the patient’s best interests, the doctor with overall responsibility for the patient’s care must certify that the patient is not capable of consenting to the proposed treatment. The certificate authorises the doctor to “do what is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or mental health of the adult”.10

Box 8: Treating patients who lack capacity

  1. Benefit (ie, your intervention must be necessary and must benefit the patient)
  2. Minimum intervention (ie, your intervention must be the minimum necessary to achieve the purpose)
  3. Take account of the wishes of the adult (ie, you must take account of the adult’s present and past wishes and feelings and you must try every possible means of communicating with the adult to find out what these are)
  4. Consultation with relevant others (ie, you must take into account the views of the adult’s nearest relative and primary carer, and of any other person with powers to intervene in the adult’s affairs or personal welfare, or with an interest in the adult, so far as it is reasonable and practicable to do so)
  5. Encourage the patient to use residual capacity (ie, you must encourage the adult to use any skills he or she has to participate in decision-making)

Adults with Incapacity (Scotland) Act 2000

 

Box 9: Best interests

Remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private

A person trying to work out the best interests of a person who lacks capacity to make a particular decision … should:

  • encourage the person to take part, or to improve their ability to take part, in making the decision
  • try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves
  • try to find out the views of the person who lacks capacity, including: 
    • the person’s past and present wishes and feelings – these may have been expressed verbally, in writing or through behaviour or habits. 
    • any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question. 
    • any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves.
  • not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour.
  • consider whether the person is likely to regain capacity (eg. after receiving medical treatment). If so, can the decision wait until then?
  • not be motivated in any way by a desire to bring about the person’s death.
  • they should not make assumptions about the person’s quality of life.
  • if it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values. In particular, try to consult:
    • anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues 
    • anyone engaged in caring for the person
    • close relatives, friends or others who take an interest in the person’s welfare
    • any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney made by the person 
    • any deputy appointed by the Court of Protection to make decisions for the person.
  • For decisions about major medical treatment or where the person should live and where there is no-one who fits into any of the above categories, an Independent Mental Capacity Advocate (IMCA) must be consulted.
  • When consulting, remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private – so it would not be right to share every piece of information with everyone.
  • see if there are other options that may be less restrictive of the person’s rights.
  • weigh up all of these factors in order to work out what is in the person’s best interests.

MCA Code of Practice, pp. 65–6

  

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