Commentary on Sections Part 1 – Principles Section 7 – Best interests
Section 7 makes further provision in relation to the best interests principle. It is not, however, defined given the wide range of acts and decisions the Act covers. Instead, section 7 provides a list of factors that are not intended to be exhaustive but which must all be balanced in order to comply with the principle in section 2.
Section 7 makes it clear that determining what is in P’s best interests must not be based merely on his or her age, appearance, or any other characteristic of P, including any condition P may have. Rather all relevant circumstances must be considered (that is to say, those which the person making the determination is aware of and which it is reasonable to regard as relevant). Consideration must also be given to whether P is likely to regain capacity at a future date in case the decision can be put off until P can make the decision for him or herself.
The section goes on to list particular steps that must be taken. Importantly, the person determining best interests is required, so far as is practicable, to encourage and help P to participate as fully as possible in assessing best interests following consultation. It also requires special regard to be had to P’s past and present wishes and feelings and, in particular, any relevant written statement made by P when he or she had capacity (sometimes referred to as an “advance statement”), P’s beliefs and values and any other factors likely to influence P’s decision if he or she had capacity, in so far as they are reasonably ascertainable.
The person determining best interests must also (where practicable and appropriate) consult with “the relevant people” and take into account their views as to what would be in P’s best interests. This could include the nominated person, the independent mental capacity advocate, anyone named by P to be consulted on the matter, anyone engaged in P’s care or interested in his or her welfare, any attorney appointed under a lasting power of attorney or an enduring power of attorney and any deputy appointed by the court.
The person determining best interests must also have regard to any less restrictive alternatives to the intervention being proposed and whether failure to do an act is likely to result in harm to other persons which could ultimately have harmful consequences for P. Finally, this section provides that where determining whether treatment that is necessary to sustain life is in the best interests of P, the decision maker must not be motivated by a desire to bring about P’s death.
Given the scope of decisions to which it might apply, this provision in the Act has been drafted in such a way as to allow it to operate in a wide range of situations, including, for example, an emergency or what might generally be a routine intervention, such as washing or dressing someone. This has been achieved by conditioning some of the requirements set out above around what is reasonable, practicable and appropriate.