Quality standard

Quality statement 4: Best interests decision making

Quality statement 4: Best interests decision making

Quality statement

People aged 16 and over who lack capacity to make a particular decision at the time that decision needs to be made have their wishes, feelings, values and beliefs accounted for in best interests decisions.

Rationale

When a person lacks capacity to make a particular decision at the time the decision needs to be made, all actions and decisions taken by practitioners must be in the person's best interests. This principle covers all aspects of financial, personal welfare and healthcare decision making and actions.

The person must be placed at the heart of the decision-making process and supported to be involved in the decision-making process as far as possible. Wherever possible this means finding out about the person's past and present wishes, feelings, values and beliefs that would have influenced the decision if the person had capacity. It also means using information included in care plans and advance care plans, consulting with the person's family, carers and advocates and seeking to establish the person's wishes, preferences and values.

For adults (aged 18 and over) particular attention should be paid to advance decisions, lasting power of attorney and court order, including any court-appointed deputy.

Quality measures

Structure

a) Evidence of local protocols to ensure that best interests decisions are being made in line with the Mental Capacity Act 2005.

Data source: Local data collection, for example an audit of the best interests decision-making processes.

b) Evidence of systems and protocols that support the decision maker to identify and locate any relevant written statements made by the person when they had capacity, at the earliest possible time.

Data source: Local data collection, for example service level agreements and partnership arrangements between services.

c) Evidence of systems and protocols that ensure the decision maker reviews any relevant written statements made by the person before they make a best interests decision.

Data source: Local data collection, for example an audit of the best interests decision-making processes.

d) Evidence of systems and protocols that ensure carers, family, friends or advocates are involved in the best interests decision-making process.

Data source: Local data collection, for example an audit of the best interests decision-making processes.

Outcome

Proportion of significant and trusted people, including family members, carers and independent advocates, who feel included in making best interests decisions for the person who lacks capacity.

Numerator – the number in the denominator who feel included in making best interests decisions for the person they support.

Denominator – the number of significant and trusted people, including family members, carers and independent advocates, for a person who lacks capacity.

Data source: Local data collection, for example a survey of trusted people including family members, carers and independent advocates.

What the quality statement means for different audiences

Service providers (such as local authorities, private care providers, GPs, hospitals and community services) ensure that best interests decisions are being made in line with the Mental Capacity Act 2005. They implement processes and protocols, and provide toolkits, to support staff to carry out and record best interests decisions. They also have clear systems in place to support practitioners to identify and locate any relevant written statement or advance care plan made by the person when they had capacity to make decisions.

Health and social care practitioners (such as social workers, care staff, GPs, doctors, nurses and therapists) are responsible for deciding what course of action would be in the person's best interests. They ensure that any best interests decision made reflects the person's wishes, feelings, values and beliefs as far as reasonably practicable. They use a range of approaches to gather information about the person informally, as well as through formal meetings, and to identify any relevant advance care planning documents that may support making the decision. They work with carers, family and friends, advocates, attorneys and deputies to find out the person's wishes, feelings, values and beliefs in relation to the specific decision and to understand the person's decision-making history.

Commissioners (such as local authorities, clinical commissioning groups, NHS England) ensure that they commission services in which decisions are being made in line with the Mental Capacity Act 2005. They ensure that people aged 16 and over who lack capacity remain involved in the decision-making process. They also ensure that health and social care practitioners have the skills, facilities and resources that allow them to establish the person's wishes, feelings, values and beliefs.

People aged 16 and over who are not able to make decisions are involved as much as possible when decisions are made about their care and support. Health and social care staff use the information they have about their wishes, feelings, values and beliefs when making a decision about their care and support.

Source guidance

Decision-making and mental capacity. NICE guideline NG108 (2018), recommendations 1.5.6 and 1.5.14

Definitions of terms used in this quality statement

Best interests decision

When a person does not have capacity to make a decision, all actions and decisions taken by practitioners, or their attorney or court-appointed deputy must be done or made in the person's best interests. Any relevant written statements expressing the individual's views about the decision in question should be taken into account and given appropriate weight. Health and social care organisations should provide toolkits to support staff to carry out and record best interests decisions. These toolkits should include:

  • how to identify any decision-making instruments that would have an impact on best interests decision making occurring (for example a lasting power of attorney, advance decisions to refuse treatment, court orders)

  • when to instruct an independent mental capacity advocate

  • a prompt to consult interested parties (for example families, friends, advocates and relevant professionals) and a record of who they are

  • guidance about recording the best interests process and decision. This may include, for example, a balance sheet, which may assist in documenting the risks and benefits of a particular decision

  • instructions on what information to record, ensuring this covers:

    • a clear explanation of the decision to be made

    • the steps that have been taken to help the person make the decision themselves

    • a current assessment concluding that the person lacks the capacity to make this decision, evidencing each element of the assessment

    • a clear record of the person's wishes, feelings, cultural preferences, values and beliefs, including any advance statements

    • the concrete choices that have been put to the person

    • the salient details the person needs to understand

    • the best interests decision made, with reasons.

[NICE's guideline on decision-making and mental capacity, section 1.5 on best interests decision making]