Joint Committee on the Draft Mental Incapacity Bill First Report


7 Chapter 7: (Clause 4) Best interests

The concept of "best interests"

79. Clause 4 of the draft Bill seeks to establish the common-law principle that any act done for, or any decision made on behalf of a person who lacks capacity must be in the person's "best interests". This principle has become well-established and developed by the courts in cases relating to incapacitated adults. Under the draft Bill, capacity to do the act or make the decision in question must first be assessed and Clause 4 only comes into play once it has been established that the person lacks capacity. It then sets out a number of basic common factors to which "regard must be had" in all situations when determining what is in an incapacitated person's best interests.

80. The submissions received by the Committee have broadly supported the view that the factors listed in Clause 4 are indeed particularly relevant and important in guiding decision-making on behalf of people lacking capacity to make their own decisions. However, some witnesses[59] objected to the term "best interests" itself, sharing the views expressed by the Scottish Law Commission[60] that the concept of best interests is too vague and, since it was developed in the context of child law, too paternalistic to be applied to adults. The Making Decisions Alliance[61], while supporting a best interests approach, was concerned that the principle of best interests had been developed primarily in case law concerned with the provision of medical treatment[62] and the term was therefore too often linked to clinical and healthcare considerations which may not be relevant in relation to other types of decisions.

81. We have already expressed the view that greater clarity could be achieved by setting out, at the start of the Bill, a statement of general principles to govern all actions and decisions taken under the new legislation (see paragraph 3, Chapter 3). Some witnesses, including the Law Society of Scotland[63] supported by the Law Society of England and Wales[64], expressed the view that clearly stated principles such as those set out in Section 1 of the Adults with Incapacity (Scotland) Act 2000 (AWI Act) should include all the factors involved in determining best interests and would therefore replace the need for the term itself and the definition contained in Clause 4.

82. However, other witnesses believe that where a person is incapable of making his/her own decision, "the only viable approach is a best interests approach".[65] We heard evidence that the concept of best interests has been usefully developed by the courts and that its inclusion in statute would assist in promoting awareness and good practice, thereby ensuring some consistency in approach.[66] Indeed, many submissions appear to support this view, although several commentators have suggested ways in which the definition could be improved or the scope of best interests could be extended (see paragraph 84 below), in particular to emphasise the need to identify the issues most relevant to the individual who lacks capacity (as opposed to the decision-maker or other persons) and the particular circumstances relating to the decision in question.

83. We take the view that the general principles set out at the start of the Bill should confirm that any act done for, or any decision made on behalf of a person who lacks capacity must be in the person's "best interests", and agree that statutory guidance on determining best interests should be included in the Bill.

The definition and scope of best interests

84. In its report on Mental Incapacity, the Law Commission acknowledged that "no statutory guidance could offer an exhaustive account of what is in a person's best interests, the intention being that the individual person and his or her individual circumstances should always determine the result".[67] Instead, it recommended that statute should set out a checklist of common factors which must always be taken into account. The checklist set out in Clause 4 is therefore intended to be the minimum necessary in any determination of best interests.

85. We agree that no list of 'best interest' factors can ever be comprehensive or applicable in all situations. We therefore endorse the approach recommended by the Law Commission that a checklist of common factors to be considered in all cases should be set out in statute. However, it should be made clearer in the Bill that, in addition to these common factors, all other matters relevant to the particular incapacitated individual and the particular decision must also be considered.

86. Several submissions suggested various ways in which the statutory checklist could be improved. A number of suggestions are considered below:

Benefit

Several witnesses suggested that the concept of "benefit" contained in the Scottish AWI Act would be a helpful addition to the best interests checklist.[68] The AWI Act stipulates that "There shall be no intervention … unless that intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention."[69] The term "benefit" is not defined, but guidance suggests that the intervener must weigh the intervention against the benefit to the incapable adult - the more serious the intervention, the greater the benefit that should have to result from it. The advantage of this requirement is that it places the focus firmly on the incapable adult and gives priority to his/her needs, which is an important consideration when the formal interventions available under the AWI Act are invoked. The disadvantage is that, if applied too rigidly, it may not allow consideration of other relevant factors (such as those affecting carers) which may be an important consideration in meeting the person's needs or addressing their particular circumstances. This is a key consideration already applied by the courts.[70] In the context of the comprehensive decision-making framework created under the draft Bill, we concluded that the concept of benefit may be too prescriptive if added to the checklist.

Best 'personal' interests

87. The Making Decisions Alliance[71] invited us to consider a proposal originally put forward by the Law Society[72], to adopt the phrase 'best personal interests' in order to stress that priority should be given to identifying those issues relevant to the incapacitated individual, and what s/he would have wanted to achieve, rather than to the decision-maker or other person. We are pleased that in correspondence with the Chairman, Lord Filkin has confirmed that "Our intention is precisely to give primacy to the personal interests of the individual. … This is, perhaps, something that could be made more explicit in a statement of principles at the head of the legislation".[73] Given that Clause 4(1) already requires that any act must be done or decision made "in the person's best interests", we concluded that the addition of the word personal to best interests would not provide any better clarification and indeed might cause confusion.

Primacy of interests

88. One way of focusing on the needs and wishes of the incapacitated person might be to prioritise the best interests checklist or to weight particular factors, for example by giving primary (or paramount) consideration to the individual's subjective wishes and judgements where these could be ascertained. We received conflicting evidence on this issue. Organisations and self-advocacy groups of people with learning difficulties[74] clearly felt that their views would not be given sufficient weight under the Bill's provisions as currently drafted. However, other witnesses felt that any weighting would make it impossible to balance the need to promote autonomy of the individual with the need to provide protection and appropriate care. In particular, witnesses with particular concerns about end-of-life decisions felt that medical or clinical need directed to preserving life and promoting good health should take priority.[75] Carers UK felt a distinction should be drawn between family and paid carers and the views of family carers be given priority over paid carers and professionals[76] while Care UK, an independent provider of heath and social care services, suggested that best interests should be specifically linked to maintaining independence, which would enable care professionals seeking to maximise opportunities for developing independence to override the wishes of over-protective parents or relatives of people lacking capacity.[77]

89. We acknowledge that consideration of best interests requires flexibility, by allowing and encouraging the person to be involved to the fullest possible extent but also enabling the decision-maker to take account of a variety of circumstances, views and attitudes which may have a bearing on the decision in question. This flexibility is particularly important in cases of partial or fluctuating capacity. Determining best interests is a judgement, requiring consideration of what will often be conflicting or competing concerns, while seeking to achieve a consensus approach to decision-making. We do not recommend any weighting or giving priority to the factors involved in determining best interests. It will be important for the Codes of Practice to provide guidance on how judgements about best interests may be reached, particularly where there are conflicting or competing concerns.

Values

90. The Medical Ethics Alliance[78] suggested to us that the factor involving the need to consider the incapacitated person's "past and present wishes and feelings" should also contain reference to that person's values. Others[79] suggested that specific reference should be made to social, psychological, cultural, spiritual and religious issues. It is anticipated that the need to consider a wide range of issues, in particular religious and cultural concerns, will be spelt out in the Codes of Practice. We seek reassurance that the form of words used in the Bill will require a person's values to be given due weight.

Human rights

91. Professor John Williams[80] has suggested that the term "best interests" could be replaced with "in the interests of promoting the human rights of the person concerned" in order to require decision-makers to carry out a "human rights calculation", for example in considering the person's right to a private life versus the right not to be subjected to inhuman or degrading treatment. Any public authorities (or their employees) carrying out duties or exercising powers under the new Act will in any event have to ensure they act in compliance with the Human Rights Act 1998. We considered it would be too onerous on relatives, carers and other informal decision-makers to require an understanding of human rights legislation when determining best interests. The Codes of Practice and any Departmental guidance issued to the general public should explain the relevant human rights considerations.

Consultation with others

92. Both the AWI Act and the draft Bill indicate the need to consult with other relevant people and the groups specified are similar, with the exception that the Bill has no equivalent of "nearest relative" and allows the person concerned to nominate people to be consulted. The AWI Act does not specify the type of views of others which must be taken account of, while the draft Bill limits the consultation with others to obtaining views on the past and present wishes and feelings of the person and what factors that person might have taken into consideration if able to do so. The Law Commission had suggested that concerned relatives and carers should also be able to express a view as to what might be in the person's best interests in relation to the decision in question.[81] Although this recommendation was accepted by the Government in 'Making Decisions'[82], it has not been carried forward in the draft Bill. Several submissions stressed the need for families, civil partners and carers to be fully consulted and involved in decisions about best interests.[83] We consider that specific provision should be made to confirm that consultation with people close to the incapacitated person will include consideration of their views on what is likely to be in that person's best interests. In advance of the legislation anticipated on the status of civil partners we would expect the expression 'people close to' to include civil partners.

What is required of the decision-maker?

93. In addition to the requirement to show benefit, the AWI Act also requires any intervention to be the least restrictive option in relation to the freedom of the adult, and that "account shall be taken of" the views of the adult and of relevant others. The draft Bill uses the weaker formulation "have regard to" the various factors in the checklist, following the conclusion reached by the Law Commission that any more forceful form of words could become over-prescriptive and detract from "best interests" as the pre-eminent consideration.[84]

94. A number of submissions[85] indicated that the Bill, as currently drafted, was more a charter for carers and other decision-makers rather than protecting the interests of people lacking capacity. The need to make decision-makers more accountable for their actions would seem to indicate the need for a stronger form of words specifying more clearly their duties in relation to determining best interests. We recommend that the drafting of Clause 4 be amended to impose a requirement on decision-makers to seek the least restrictive option, and to specify that, in determining best interests, account must be taken of all the factors set out in the checklist.

Least restrictive option

95. We were impressed with that part of the AWI Act principles which confirms that intervention into the affairs of an incapacitated person should only be contemplated where it is absolutely necessary and the purpose for which that intervention is needed cannot be achieved in any other way.[86] The need for an equivalent 'no-intervention' provision in the Bill was expressed by the Law Society and other witnesses.[87] In deciding whether permission should be granted to refer a case to the Court of Protection, Clause 40(3) of the draft Bill would require the court to consider the benefit to the person of the proposed order or directions, and whether the benefit can be achieved in any other way than court intervention.

96. In relation to all decisions made on behalf of a person lacking capacity, both the AWI Act and the draft Bill[88] specify the need to choose the option that is least restrictive of the person's freedom of action. We take the view that a requirement on decision-makers to seek the least restrictive option would involve having to consider whether any intervention at all was necessary. We therefore see no need for a specific "no intervention" provision other than in relation to court proceedings.

Standard of conduct / Duty of care

97. The Master of the Court of Protection suggested that there are inadequacies in the approaches of both the AWI Act and the draft Bill, in that neither places sufficient obligations and duties on substitute decision-makers.[89] Instead of imposing a duty to act in a person's best interests, the Master has suggested that:

    "there should be a comprehensive statement of the standard of conduct required of everyone who acts or makes decisions on behalf of persons without capacity, and if their behaviour falls below those standards it should be possible for the court to remove them as attorneys or deputies, or as the case may be, and if their conduct is criminal, they should face the prospect and consequences of prosecution".[90]

98. The Master suggested a number of specific obligations and duties which should be set out in any such standard of conduct.[91] We agree that it would be appropriate to impose a standard of conduct on formal decision-makers appointed under a Lasting Power of Attorney or a court order. We strongly recommend that the requirements of a standard of conduct be included in the Codes of Practice aimed at those exercising formal powers under the Bill. We also recommend that the Department should issue clearly understandable guidance to informal decision-makers on the standards of conduct expected.

99. Witnesses before the Committee[92] were unclear as to whether decision-makers acting under the Bill's powers would be subject to a common law duty of care. We seek reassurance that a common law duty of care would apply to all decision-makers under the Bill and ask that consideration be given to imposing a duty of care through express statutory provision. Here, too, the Department will need to issue guidance to informal decision-makers on the expected standards of conduct.

Reasonable belief

100. The need to determine and act in accordance with the incapacitated person's best interests will apply in relation to all decisions made under the new Act, extending from informal decisions to court based powers. Where there is a need for court intervention, the Court will clearly require formally documented evidence that the person lacks capacity to make the decision in question and will consider evidence from a range of sources as to what course of action might be in the person's best interests. However, in many day-to-day situations, such formality is neither required nor appropriate and in emergency cases may not be possible. Clause 4(4) is intended to deal with these types of situations by confirming that the requirement to act in a person's best interests will be complied with if the decision-maker "reasonably believes that what he does or decides is in the best interests of the person concerned".

101. We heard evidence[93] that while the notion of "reasonableness" may be familiar to lawyers, it is not so familiar to other decision-makers who might disregard the best interests checklist and justify their actions from their own subjective viewpoint of what is reasonable.

102. The Making Decisions Alliance[94] suggested that a decision-maker should be required, "on the basis of objective evidence", to show that his/her belief that s/he was acting in the person's best interests was in fact reasonable. The Law Society pointed out that there is much case law on the issue of reasonableness and argued that "whether the reasonableness here is an objective or a subjective test should be made clear on the face of the Bill."[95] In oral evidence, the Law Society[96] suggested that a similar formulation of words to that used in the Disability Discrimination Act 1995[97] might be the most appropriate. This would state that best interests would be complied with if, in the decision-maker's opinion, what s/he does or decides is in the person's best interests and it is reasonable in all the circumstances of the case for the decision-maker to hold that opinion. We are sympathetic to the need for compatibility between different legislation affecting similar groups of people, such as those lacking capacity. Lord Filkin has confirmed to us that "This must be an objective belief".[98] We recommend that the Codes of Practice should explain more clearly the circumstances in which reasonable belief should be relied upon.


59   Ev 190 MIB 564, Ev 11 MIB 989 Back

60   Scottish Law Commission Report on Incapable Adults, para 2.50 Back

61   Ev 30 MIB 950, Ev 85 MIB 1180 Back

62   See for example Re MB [1997] 2 FLR 426, Re S [2000] 2 FLR 389 Back

63   Ev 1 MIB 990 Back

64   Ev 203 MIB 1030 Qs 547-552 (?)  Back

65   Ev 416 MIB 1192 Back

66   Ev 190 MIB 564 Back

67   Law Commission No 231 (1995), para 3.26 Back

68   Q16 (Mr Ward) Back

69   Adults with Incapacity (Scotland) Act 2000, s 1(2) Back

70   For example, in the case of Re Y [1996] 2 FLR 787, the court held that it was in an incapacitated person's wider best interests as a family member to allow her bone marrow to be used to treat her sibling, even though the treatment was of no clinical benefit to her personally. Back

71   Ev 30 MIB 950 and Qs 93-97, 155-157, 167-168 Back

72  Law Society, Response to 'Who decides?' (1998)  Back

73   Ev 284 MIB 1221 Back

74   Ev 228 MIB 778, Ev 226 MIB 71 Back

75   Ev 141 MIB 183, Ev 144 MIB 561, Ev 135 MIB 561 Back

76   Ev 335, MIB 771 Back

77   Ev 245 MIB 1202 Back

78   Ev 141 MIB 183  Back

79   Ev 144 MIB 561, Ev 100 MIB 817, Ev 364 MIB 822, Ev 203 MIB 1030, Ev 165 MIB 1206 Back

80   Ev 190 MIB 564, Qs 522-527 Back

81   Law Commission Report 231 (1995), paras 3.33-3.36 Back

82   Lord Chancellor's Department, Making Decision: The Government's proposals for making decisions on behalf of mentally incapacitated adults (1999) Back

83   Ev 243 MIB 61, Ev 335 MIB 771 Back

84   Law Commission No 321 (1995) Para 3.28, footnote 47.  Back

85   Ev 226 MIB 71, Ev 228 MIB 778, Q427 (Mr Dixon) Back

86   Section 1(2) Back

87   Q551 Ev 209; Q553 Ev 210; Ev 33, para 3.4 Back

88   Clause 4(2)(e) Back

89   Ev 183 MIB 1049 Back

90   Ev 185 para 22 Back

91   Ev 184, para 13 Back

92   Q511 (Mr Lush), Ev 135 MIB 781, Ev 419 MIB 1193  Back

93   See for example The Law Society Ev 205, para 6, Making Decisions Alliance Ev 34, para 4.4.1 and oral evidence from both organisations Back

94   Q102 (Mr Foster) Back

95   Ev 224 MIB 1215, para 4 Back

96   Q595, Q599 Back

97   Disability Discrimination Act 1995, s 20(3) Back

98   Ev 284 MIB 1221 Back


 
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