Best Interests Decision-Making. Guidance for Staff

Transcription

1 Best Interests Decision-Making Guidance for Staff 1

2 Policy / SOP Title: Executive Summary: Best Interests Decision-Making Guidance for Staff The aim of this guidance is to summarise in a readable way the Mental Capacity Act and Code of Practice principles around best interests decision-making and the guidance from the Department of Health-funded report by the British Psychological Society. Supersedes: New Document Description of N/A Amendment(s): This policy will impact on: All Trust Staff Financial Implications: None Policy Area: CORPORATE Document Reference: Version Number: V1 Effective Date: Issued By: Author: (Full Job title ) Deputy Director of Corporate Affairs and Governance John Glynn Legal Services Manager APPROVAL RECORD Committees / Group 23/11/11 Review Date: Feb 2015 Impact Assessment Date: 23/11/11 Date Consultation: Governance Managers Group 07/09/11 Approved by : Received for information: Clinical and Non Clinical risk Management Group Business Unit SQS Group 23/11/11 December

3 Contents 1. Introduction 4 2. Who is the decision-maker? 4 3. How does the decision-maker decide? 5 4. When to refer for an IMCA 6 5. Balance sheet principle 6 6. Least restrictive principle 6 7. Other factors to consider 7 8. Recording 7 9. Best interests meetings Disputes Appendix 1 Exceptions Appendix 2 Examples Appendix 3 Suggested template Appendix 4 Best Interests Meeting Record Equality and Diversity Screening Tool 23 3

4 1. Introduction 1.1 The aim of this guidance is to summarise in a readable way the Mental Capacity Act and Code of Practice principles around best interests decisionmaking and the guidance from the Department of Health-funded report by the British Psychological Society. 1.2 When we make a decision for ourselves, we are normally choosing between two or more options. We are trying to decide what is the best course of action for us, given what we know about the current situation, what the future is likely to be and what we want. The decision we make will probably be a best guess as to what will give us the best outcome, after weighing up the pros and cons of the options. Some of these choices may be heavily influenced by our attitudes, values and beliefs, by our emotional state, or by the views of other people who are important in our lives. 1.3 The Mental Capacity Act puts into legislation previous best practice and case law. 1.4 One of the five main principles of the Mental Capacity Act is that: 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. This is regardless of who the decision-maker is (eg. family carer or paid care worker) and regardless of the decision to be made (eg. what to wear or where to live). The only exceptions are listed in Appendix Who is the decision-maker? 2.1 For most day-to-day actions or decisions, the decision-maker will be the carer most directly involved with the person at the time. 2.2 If the decision involves whether or not to accept proposed care, the social care worker proposing the care plan will be the decision-maker (subject to approval of the care plan by their line manager). 2.3 Where the decision involves the provision of medical treatment, the decisionmaker will be the doctor or other healthcare professional responsible for carrying out the particular treatment or procedure. 2.4 If a Lasting Power of Attorney has been made and registered then the attorney will be the decision-maker, unless the person specifically excluded this decision. 2.5 If the Court has appointed a deputy, the deputy will be the decision-maker if the decision is within the scope of their authority. 4

5 3. How does the decision-maker decide what is in the person s best interests? 3.1 The Principles to follow and Steps to take are together known as the statutory checklist, from the Act. These have been reordered and guidance from the Code of Practice added to make them easier to apply in practice. 3.2 In making a best interests decision, you need to consider the person s current and future interests, weigh them up and decide which course of action is, on balance, the best course of action for that person. 3.3 Principles to follow: Consider whether the person will regain capacity and, if so, if the decision can be put off until then. This includes considering whether the person has fluctuating capacity or will develop skills that will lead to them gaining capacity to make this decision for themselves in the future. A short-term decision may need to be made if the person may be able to make a long-term decision for themselves in the future, or the decision may be able to be put off altogether. If the decision concerns life-sustaining treatment, don t be motivated by a desire to bring about the person s death. Avoid discriminating against the person, eg. by making an assumption about what would be in their best interests (for example, assuming that adults with learning difficulties are better off not living with their parents). You need to take the following steps and also have a reasonable belief that the decision you make is in the person s best interests. The steps also apply to donees of Lasting Powers of Attorney and courtappointed Deputies. 3.4 Steps to take: Consider all the circumstances of which you are aware and which it would be reasonable for you to regard as relevant. Permit and encourage the person to participate in the decision (you will have tried to help them to make the decision for themselves and now need to continue to keep them involved in and informed about the decision-making process). Consider (as far as is reasonably ascertainable this means considering all possible information in the time available) the person s: o Past and present wishes and feelings (These may have been expressed verbally, through behaviour, emotional responses or habits or in writing. It is important to be sure that other people have not influenced the person s views an advocate could help the person to express their views.). o o o o Beliefs and values that would influence their decision if they had capacity to take it (eg. religious, cultural, moral or political. The person may have previously set out their beliefs and values in a written statement.). The other factors the person would be likely to consider if they could do so (eg. the effect of the decision on other people, obligations to dependants, the duties of a responsible citizen). You need to seek the views of the people listed in the paragraph below about the person s wishes, feelings, beliefs, values and factors they would consider. Bear in mind that you are not trying to take the choice that you think the person would have made. You are taking their views into account as a 5

6 factor in making the best interests decision. However, if the person has made a written statement and your decision does not follow this, you need to specifically record the reasons for this. Take into account, if it is practical and appropriate to consult them, the views of the following people on what is in the person s best interests. In weighing up these views, consider how long the contributor has known the person and what their relationship is (including any conflicts): o o o o Anyone named by the person to be consulted. Anyone engaged in caring for the person. Anyone interested in the person s welfare. Any donee of a Lasting Power of Attorney or a court-appointed Deputy. 4. When to refer for an IMCA 4.1 Anyone who lacks capacity to consent to certain major decisions, and who does not have someone to support or represent them, must be referred to an Independent Mental Capacity Advocate (IMCA). These decisions are: Permanent or long term changes of accommodation (mandatory referral). Serious medical treatment (mandatory referral). Protective measures as part of an adult protection investigation (discretionary referral). Reviews of care (discretionary referral). 4.2 Staff should refer to the Mental Capacity Act Policy on instructing IMCAs in order to identify the need for an IMCA and refer in a timely manner. 5. Balance sheet principle 5.1 In taking best interests decisions in court, judges have often used the balance sheet principle, drawing up a list of the emotional, medical, social and welfare benefits and disadvantages (including the likelihood of each benefit or disadvantage occurring) of the proposed alternatives. It may be helpful to work through the statutory checklist to try to ensure you do not miss any of the relevant factors. See the two examples in Appendix Least restrictive principle 6.1 Before the decision is made, regard must be had as 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. 6.2 Staff should refer to the Mental Capacity Act Policy regarding any issues relating to possible deprivation of liberty in respect of a patient lacking mental capacity. 7. Other factors to consider 6

7 7.1 Do not make the decision based on what you would want to do if you were the person lacking capacity to take that decision. 7.2 What is in the person s best interests may change over time so it is important to regularly review their best interests. 7.3 The decision could benefit someone else, as long as it is in the person s best interests. 8. Recording 8.1 It is important to record the following information: How the decision about the person s best interests was reached. If the person has made a written statement and your decision does not follow this, you need to specifically record the reasons for this. What the reasons were for reaching the decision. Who was consulted to help work out best interests. What particular factors were taken into account. 8.2 The Best Interest Meeting Record Form recording the best interests decisionmaking process can be found in appendix Best interests meetings 9.1 Best interest meetings should be held when the decision-maker would like formal support from the multi-disciplinary team to make the decision; or when there is an unresolved dispute between the decision-maker and family members or other professionals. 9.2 The meetings should be chaired by a senior or team manager in the decisionmaker s team. In particularly complex cases, the Adult Protection Lead/Practitioner could be asked to chair the meeting. 9.3 Role of the chair Before the meeting Confirm that a capacity assessment has been carried out and the person does lack the capacity to make the relevant decision. Be clear what decision or decisions need to be made and when. Ensure that they are not decisions that cannot be made by anyone else on the person s behalf (see Appendix 1) or a decision about serious medical treatment that needs to be brought before the Court of Protection. Ensure that all the relevant people are invited to the meeting, and if they cannot attend, they are asked to provide information to be shared at the meeting. Relevant people include the person responsible for implementing the decision, key staff who currently care for the person, any involved family members or friends and (if they have been appointed) anyone named by the person as someone to be consulted and any donee or deputy. (The donee or deputy may or may not be the decision-maker for this specific decision.) Ensure that there is someone available to take notes of the meeting, who is different from the chair. Ideally a minute-taker, who is not involved in providing information at the meeting, should attend. 7

8 9.3.2 During the meeting agenda template(appendix 3) Introductions, including ground rules. Purpose of the meeting. The chair will need to outline the decision or decisions to be made. The chair should set out the aim of the meeting, ie to reach a shared decision as to what is in the person s best interests (which means the decision should not be made on the basis of what the participants feel the person would have wanted or what they would do if they were in the person s shoes). It is probably unhelpful to ask the participants at this stage for their views on the person s best interests as this might reinforce the participants current opinions and make it harder for them to consider new information and others opinions. The purpose of the meeting is not for any participant to persuade another of their viewpoint. Review of the requirements of the statutory checklist. Invitation to the participants to share information about the relevant factors. These could be recorded on a flip chart as risks and benefits of the alternatives under the headings of emotional, medical, social and welfare. See examples in Appendix 2. Discussion to enable the participants to pull the information together and weigh it up. The chair should encourage all present to participate and not allow anyone to dominate. Summary of information and factors to be considered. Best interests decision. It may be appropriate at this point to ask each participant what they consider, on the balance of probability, the best interests decision should be and why. Aim to reach agreement. If the decision-maker cannot reach an agreement with the other participants, the reasons for this should be explained and recorded at the meeting and the chair should make the participants aware of the means they have to challenge the decision. After the meeting the chair will review and distribute the minutes. 10. Disputes 10.1 An advocate may be able to help settle a disagreement simply by presenting a person s feelings to their family, carers or professionals Mediation can help to settle a dispute informally If family, friends, carers or an IMCA disagree with the decision-maker s best interests decision, they can follow the usual local complaints procedure When to apply to the Court of Protection please seek advice from the Legal Services Manager, , when considering an application to the Court of Protection Health and welfare decisions Certain major decisions about a person's social care, serious healthcare issues and some major medical treatments need to be made by the Court. 8

9 If there is a major disagreement regarding a serious decision, for example, where someone should live, the decision-maker should consider with their line manager the appropriateness of making an application to the Court of Protection via Legal Services. The Legal Services Department only accept instructions from nominated officers, who are called Instructing Officers. If the line manager thinks an application to the Court of Protection may be appropriate, they should discuss the case with the relevant Instructing Officer. If the Instructing Officer decides to instruct the Legal Services Department to apply to the Court of Protection, the allocated Lawyer will seek full instructions from the decision-maker and proceed to apply to the Court for permission to start proceedings. The person themselves (with support) may apply to the Court, in most cases without permission. The Court can make a declaration as to whether the person has capacity in relation to the decision in question; and whether a specific act relating to a person s care or treatment is lawful (whether or not the act is proposed or has already been carried out). If someone suspects that a person who lacks capacity to make decisions to protect themselves is at risk of harm or abuse from a named individual, the Court could make an order preventing that individual from contacting the person. Appendix 1 - Exceptions Decisions that cannot be made under the Mental Capacity Act No one (including the Court of Protection) can make a decision on another s behalf about: Consenting to marriage or a civil partnership. Consenting to have sexual relations. 9

10 Consenting to a decree of divorce being granted on the basis of two years separation. Consenting to a dissolution order being made in relation to a civil partnership on the basis of two years separation. Consenting to a child s being placed for adoption by an adoption agency. Consenting to the making of an adoption order. Discharging parental responsibilities in matters not relating to a child s property. Giving a consent under the Human Fertilisation and Embryology Act (c.37). Voting at an election for any public office or at a referendum. Treatment under Part IV of the Mental Health Act 1983 Medical treatment for mental disorder of a person who is under Part IV of the Mental Health Act 1983 is not covered by the Mental Capacity Act Research There are extra rules relating to carrying out research with people who lack capacity to consent to the research. 10

11 Appendix 2 - Examples Example 1 Mr C is 35 years old. He has a moderate/severe learning disability and lives with his mother. His father is dead, and he has three siblings who have little contact with him or his mother. He came to the attention of Social Services when neighbours complained to the Council about the rubbish in the garden. Social Services had been aware of Mr C in the past but he had not been in receipt of any services for nearly 20 years. Mrs C (his mother) was unwilling to let social workers into the house. When they did manage to gain entry, they were concerned about the state of the house, about Mrs C s mental state and about the care that Mr C was receiving. The house was dirty, and Mrs C seemed to be very depressed. She had not seen a doctor. Mr C was not well cared for his clothes were dirty and he appeared not have had a bath for some time. There was very little food in the house, and what there was consisted mainly of fizzy drinks and biscuits. The social workers tried to discuss Mr C s care with his mother. However, she was not willing to do this. They tried to do this on a number of occasions, and each time Mrs C refused to discuss it. She also refused to see her GP in relation to her depression. Social Services assessed that Mr C did not have capacity to decide where to live, so they would decide in his best interests. They convened a best interests meeting, attended by the social worker, the social work team manager, Mr C s mother, her solicitor, a representative of the Local Authority s legal department and Mr C s GP. At the meeting, the following balance sheet was drawn up: Benefits of moving away from home Medical Mr C would benefit from improved diet and healthier lifestyle Emotional Mr C might be able to make friends He would be less dependent on his mother Welfare/Social He would be living in good quality accommodation He would be cared for by skilled staff He would be treated more as an adult He would have a more sociable life He would be able to engaged in more adult activities He could still see his mother He would be able to make more choices for himself Disadvantages of moving away from home Medical He might lose his appetite and stop eating, as this had happened once before, many years ago Emotional Mr C would be distressed if removed from his mother s care He might become very anxious, which might have an impact on his behaviour Welfare/Social Mrs C is strongly opposed to Mr C moving away from home Although Mr C was not able to express a view about where he wanted to live, he appeared to become anxious if his mother wasn t in the room He would be removed from his familiar routines His behaviour might become challenging He might not like the people he lived with He might find it too pressurising to engage in new activities and not enjoy it No agreement could be reached and the decision was made to refer the case to the Court of Protection. Working through the statutory checklist for Example 1: 11

12 Will the person regain capacity? If so, can the decision be put off until that time? The degree of Mr C s learning disability made it very unlikely that he would gain capacity to make this decision in the future. Does the decision concern life-sustaining treatment? If so, do no be motivated by a desire to bring about the person s death. The decision was not related to life-sustaining treatment. Avoid discriminating against the person by making the decision merely on the basis of his age or appearance, or a condition of his, or an aspect of his, behaviour which might lead others to make unjustified assumptions about what might be in his best interests. The decision must not be based on an assumption that, for example, adults with learning disabilities should be supported to move away from their families. Consider all the relevant circumstances. These include the pros and cons for Mr C of remaining at home or moving away from home. Permit and encourage the person to participate in the decision. The psychologist who had assessed Mr C had used a range of methods to make communication more accessible. Mr C had been unable to express a view as to where he should live or who with. He was, however, able to say something about what he currently enjoyed and what he didn t like. Consider the person s past and present wishes and feelings (in particular, any written statement). Mr C had not written down his wishes or preferences. He was not able to express his wishes. He appeared to become anxious when asked to interact with strangers if his mother was not in the room. Consider the beliefs and values that would influence the person s decision if they had the capacity to take it. Mr C had never expressed any beliefs or values. Consider the other factors the person would be likely to consider if they could do so. His mother stated that Mr C would consider her and would want to stay with her. Consider the views of anyone named by the person to be consulted (as to what would be in the person s best interests and for information about the person s wishes, feelings, beliefs etc).. Mr C had not named anyone to be consulted. Consider the views of anyone engaged in caring for the person. The social worker needed to seek the views of the GP. Consider the views of anyone interested in the person s welfare. Mr C s mother had the right to be consulted. Consider the views of the donee of a lasting power of attorney or a court-appointed deputy. Mr C had not made a power of attorney and no deputy had been appointed. 12

13 Example 2 Miss K is an 89-year-old retired head teacher who lives alone, with no living relatives. She attends a day centre five days a week. She cooks light meals for herself and is independent in self-care; a cleaner comes three times a week. She was admitted to hospital after a fall in the home when she was found after 12 hours by her cleaner lying on the bathroom floor. She refused to use a zimmer frame on the ward stating that she would stick to suing a single walking stick, even though this was seen to make her gait poor and increase risk of falls when she moved from sitting to standing, or made sudden moves. In hospital she refused to undergo formal cognitive testing but she was observed to have poor short-term memory and to be disorientated in time and place. A CT scan showed general cortical atrophy. The team (in the care of the Elderly ward in the general hospital) was concerned about her going back home where there were stairs (and a stair lift was not feasible). She refused a care alarm and additional care support, stating that she could manage without these. She stated that she was ready to die. She could move to a ground floor flat or to residential home but she refused to consider either. The social worker (with the support of other team members) assessed that she lacked capacity to make the decision as to whether she could go back to live in her home as she was not able to understand the risks explained to her and could not weigh up the different alternatives. The social worker had to decide whether or not it was in her best interests to return home, involving all those engaged in caring for her. Staff at the day centre felt strongly that she could make her own decisions, but her cleaner was concerned about the risk of further falls which might leave her disabled. The social worker referred Miss K to an IMCA. A best interests meeting was held, with the social worker, the keyworker from the day centre, the cleaner, the OT, the lead nurse and the IMCA attending. The following balance sheet was drawn up: Benefits of returning home Medical Miss K might show improvements in her memory, as she would have familiar things around her She might gain capacity to make decisions for herself A return to her familiar environment might reduce her general decline, which could also reduce risk of death following an unwanted move Emotional Miss K might feel calmer, as she would not have to deal with so many other people Her wishes would be followed She would feel more in control she has always been very independent She would have her memories around her Miss K previously believed that you should cope on your own and never seek help from the state Welfare/Social She would be able to maintain some independence for longer The home carer and day centre staff could continue to check up on her Disadvantages of returning home Medical Miss K might suffer from serious falls, and any injury that might follow It was also possible that she might die if she feel and was not discovered in time Her diet and hygiene might be compromised if she were reluctant to allow further help in the house Emotional She might become more fearful of falling and isolate herself She could become depressed and is would not be noticed easily Miss K periodically asks when she can go home but doesn t seem distressed when told she can t yet go Welfare/Social She may have a reduced quality of life as she would not be able to leave the house without help The decision was made that Miss K would return home with monitoring and review. Working through the statutory checklist for Example 2: 13

14 Will the person regain capacity? If so, can the decision be put off until that time? Miss K currently lacked the capacity to make the decision. The results of the CT scan suggested that the deterioration was significant. The care team felt it unlikely that Miss K would gain capacity to make this decision, even if she were in more familiar surroundings. Does the decision concern life-sustaining treatment? If so, do no be motivated by a desire to bring about the person s death. This decision was not in relation to life-sustaining treatment. Avoid discriminating against the person by making the decision merely on the basis of his age or appearance, or a condition of his, or an aspect of his, behaviour which might lead others to make unjustified assumptions about what might be in his best interests. The decision should not be based on an assumption that, because Miss K is old, frail and apparently cognitively impaired, she will be better off in residential care. Consider all the relevant circumstances. These include the pros and cons of Miss K returning home. Permit and encourage the person to participate in the decision. Miss K s primary nurse used written and pictorial materials to try and help her retain and understand the options. Consider the person s past and present wishes and feelings (in particular, any written statement). Miss K had not made any written statement, but had expressed her views very clearly to her key worker and to staff at the day centre she attended. She did not want to leave her home she was ready to die, and wanted to die in her own home, with her familiar things about her. Whilst in hospital, she would periodically ask about when she was going home, but did not seem distressed when told that she could not go yet. Consider the beliefs and values that would influence the person s decision if they had the capacity to take it. Miss K had a strong self-identity as an autonomous person who was used to making difficult decisions on her own. Miss K had also always been fiercely independent, and was ashamed to ask the state for help. She had managed by herself for her entire adult life, and this was important to her. She had worked hard to become a Head Teacher, and had said that being dependent was a sign of weakness. Consider the other factors the person would be likely to consider if they could do so. No other factors were identified. Consider the views of anyone named by the person to be consulted (as to what would be in the person s best interests and for information about the person s wishes, feelings, beliefs etc). Miss K had not named anyone to be consulted. Consider the views of anyone engaged in caring for the person. The social worker needed to consult Miss K s primary nurse, day centre staff, Miss K s cleaner and the OT. Her GP knew her well and should also be involved. Consider the views of anyone interested in the person s welfare. As Miss K had no family or friends and the decision was to do with whether or not she should go home, the social worker instructed an IMCA. Consider the views of the donee of a lasting power of attorney or a court-appointed deputy. Miss K had not made a power of attorney. No deputy had been appointed. Appendix 3 - Suggested template for a formal Best Interest Meeting: Participants/Non Participants Copies Of Minutes To Be Sent To: 14

15 Individuals Not Invited/Reasons For Exclusion Introduction of Vulnerable Adult Summary Of Current Situation Decision To Be Made Who Is Decision Maker Capacity Assessment Include Date, Assessor, Outcome Is Person Likely To Regain Capacity? Can Decision Wait? What action has been taken to encourage/assist person to take part in making decision Involvement Of Family/Carer/Close Friends Views Identify Things Person Would Take Into Account If Making Decision Themselves Past Wishes Of Person Verbal/Writing Current Wishes Of Person Beliefs And Values Of Person Likely To Influence Decision Feedback From Care Manager Any Historic Information Feedback From Care Coordinator Any Historic Information Any Other Factors Person Would Likely Consider When Making Decision Information from any lasting or enduring power of attorney appointed by person Information from deputy appointed by court of protection to make decision for person Any Advance Decisions? Information From Any Professional Staff Involved IMCA Feedback/Information Summary of discussion as to any Freedom of Information exemptions applicable What Options Are Available For This Decision? Conclusion Of Meeting o Detail The Following Information o How Was Decision Made? o Reasons For Reaching Decision o Who Was Consulted? o Particular Factors Taken Into Account Date Of Next Meeting (If required) Summary Of Action Plan including Action required, person responsible and time scale Best interests Best interests is a method for making decisions which aims to be more objective than that of substituted judgement. It requires the decision maker to think what the best course of action is for the person. It should not be the personal views of the decision-maker. Instead it considers both the current and future interests of the person who lacks capacity, weighs them up and decides which course of action is, on balance, the best course of action for them. The Act does not give a clear definition of best interests, but instead outlines the factors that need to be considered when you are trying to make a decision on behalf of someone else. These factors (known as the statutory checklist and outlined in Section 4 of the Act) try and bring together all the relevant information that will enable you to make the best decision for the person. The statutory checklist consists of the following: 15

16 4(1) In determining for the purposes of this Act what is in a person s best interests, the person making the determination must not make it merely on the basis of: (a) the person s age or appearance; or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. 4(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. 4(3) He must consider: (a) whether it is likely that the person will at some time have capacity in relation to the matter in question; and (b) if it appears likely that he will, when that is likely to be. 4(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. 4(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. 4(6) He must consider, so far as is reasonably ascertainable: (a) the person s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity); (b) the beliefs and values that would be likely to influence his decision if he had capacity; and (c) the other factors that he would be likely to consider if he were able to do so. 4(7) He must take into account, if it is practicable and appropriate to consult them, the views of: (a) anyone named by the person is someone to be consulted on the matter in question or on matters of that kind; (b) anyone engaged in caring for the person or interested in his welfare; (c) any donee of a power of attorney granted by the person; (d) any deputy appointed for the person by the Court; as to what would be in the person s best interests and, in particular, as to the matters mentioned in subsection (6). 4(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which: (a) are exercisable under a lasting power of attorney, or (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity. 4(9) In the case of an act done, or a decision made, by a person other than the Court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7) he reasonably believes that what he does or decides is in the best interests of the person concerned. 4(10) Life-sustaining treatment means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life. 16

17 4(11) Relevant circumstances are those: (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant. Appendix 4 Best Interest Meeting Record Form Mental Capacity Act (2005) 17

18 If a person has been assessed as lacking capacity, then any action taken, or any decision made for, or on behalf of that person, must be made in his/her best interests-principle 4 Held on: Name: Address: Venue: Male / Female Postcode: Chair Decision Maker Minute Taker Name of participants Designation / Location Invited Present Apologies Nature of proposed care / treatment or decision to be made 18

19 Confirmation of lack of capacity [ ] Mental Capacity Record Form completed and attached (The form must detail the reasons why the person lacks capacity and the name of the person(s) involved in the assessment. If this form is not available then it must be completed before proceeding further with the meeting) AND [ ] Those present / invited agree that the person lacks capacity to make the decision (In the event of anybody challenging the assessment result, and the disagreement cannot be resolved, then a second opinion or a ruling from the Court of Protection may be required. This will depend on the urgency of the decision to be made) Comments: Regaining of Capacity (Is it likely that the person may regain capacity, can the decision wait until that time, if not why not?) Is this the least restrictive option? (If not, why not?) Justification for proposed care / treatment: 19

20 Risks relating to proposed care / treatment: Risks related to not carrying out the proposed care / treatment: What are the persons past and present wishes and feeling (These may have been expressed verbally, in writing or through behaviour or habits) Are there any beliefs and or values that would be likely to influence the decision, if he/she had the capacity? (e.g. religious, cultural, moral or political) 20

21 What are the views of the other relevant people in the person s life? What are the views of the Mental Capacity Advocate (IMCA)? (If involved) Is there a dispute about best interests? Outcome of discussions; reasonable belief as to best interests- Where the court is not involved, carers, relatives and others can only be expected to have reasonable grounds for believing that what they are doing or 21

22 deciding is in the best interests of the person concerned. They must be able to point to objective reasons to demonstrate why they believe they are acting in the person s best interests. They must consider all relevant circumstances. The undersigned believe this to be a fair representation of the discussions that took place. We have reasonable grounds for believing that what they are doing or deciding is in the best interests of the person concerned at this point in time. Name: Designation: Signature: Name: Designation: Signature: Name: Designation: Signature: Name: Designation: Signature: Name: Designation: Signature: Name: Designation: Signature: Name: Designation: Signature: Name: Designation: Signature: 22

23 Equality and Human Rights Policy Screening Tool Policy Title: Best Interests Guidance Directorate: Corporate Affairs and Governance Name of person/s auditing / authoring policy: Lorraine Jackman Policy Content: For each of the following check whether the policy under consideration is sensitive to people of a different age, ethnicity, gender, disability, religion or belief, and sexual orientation? The checklist below will help you to identify any strengths and weaknesses of the policy and to check whether it is compliant with equality legislation. 1. Check for DIRECT discrimination against any minority group of PATIENTS: Question: Does the policy contain any statements which may disadvantage people from the following groups? Response 1.0 Age? X 1.1 Gender (Male, Female and Transsexual)? X 1.2 Learning Difficulties / Disability or Cognitive Impairment? X 1.3 Mental Health Need? X 1.4 Sensory Impairment? X 1.5 Physical Disability? X 1.6 Race or Ethnicity? X 1.7 Religious Belief? X 1.8 Sexual Orientation? X Action required Resource implication Yes No Yes No Yes No 2. Check for DIRECT discrimination against any minority group relating to EMPLOYEES: Question: Does the policy contain any statements which may disadvantage employees or potential employees from any of the following groups? Response 2.0 Age? X 2.1 Gender (Male, Female and Transsexual)? X 2.2 Learning Difficulties / Disability or Cognitive Impairment? X 2.3 Mental Health Need? X 2.4 Sensory Impairment? X 2.5 Physical Disability? X 2.6 Race or Ethnicity? X 2.7 Religious Belief? X 2.8 Sexual Orientation? X Action required Resource implication Yes No Yes No Yes No TOTAL NUMBER OF ITEMS ANSWERED YES INDICATING DIRECT DISCRIMINATION = 0 3. Check for INDIRECT discrimination against any minority group of PATIENTS: 23

24 Question: Does the policy contain any conditions or requirements which are applied equally to everyone, but disadvantage particular people because they cannot comply due to: Response 3.0 Age? X 3.1 Gender (Male, Female and Transsexual)? X 3.2 Learning Difficulties / Disability or Cognitive Impairment? X 3.3 Mental Health Need? X 3.4 Sensory Impairment? X 3.5 Physical Disability? X 3.6 Race or Ethnicity? X 3.7 Religious, Spiritual belief (including other belief)? X 3.8 Sexual Orientation? X Action required Resource implication Yes No Yes No Yes No 4. Check for INDIRECT discrimination against any minority group relating to EMPLOYEES: Question: Does the policy contain any statements which may disadvantage employees or potential employees from any of the following groups? Response 4.0 Age? X 4.1 Gender (Male, Female and Transsexual)? X 4.2 Learning Difficulties / Disability or Cognitive Impairment? X 4.3 Mental Health Need? X 4.4 Sensory Impairment? X 4.5 Physical Disability? X 4.6 Race or Ethnicity? X 4.7 Religious, Spiritual belief (including other belief)? X 4.8 Sexual Orientation? X Action required Resource implication Yes No Yes No Yes No TOTAL NUMBER OF ITEMS ANSWERED YES INDICATING INDIRECT DISCRIMINATION = 0 Signatures of authors / auditors: Lorraine Jackman Date: 23/11/11 Equality and Human Rights Compliance / Percentage Calculation Number of Yes answers for DIRECT discrimination. Number of Yes for INDIRECT discrimination. Total answers for POLICY CONTENTS discrimination. (A) (B) (A+B) Percentage content non compliant = 0 (Divide a+b by 36 x 100) 24