That action is best, which procures the greatest happiness for the greatest numbers.
Francis Hutcheson 1694 - 1746
One of the guiding principles of the Mental Capacity Act is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person's best interests. By adhering to this principle then the decision-maker or carer should be protected from liability.
One exception is where the person has made an advanced decision to refuse treatment and another concerns the involvement in research, in certain circumstances, of someone lacking capacity to consent.
Difficulties arise when someone has to work out what is in someone else's best interests. There may be disagreement about what somone's best interests really are. As long as the person who acts or makes the decision has followed the steps to establish whether a person has capacity, and done everything they reasonably can to work out what someone's best interests are, the law should protect them.
Many different people can be the decision maker to make decisions or act on behalf of a person who lacks capacity. They are refered to as the 'decision maker'. The question is 'who is the most appropriate person to make the decision?'
When making a best interest decision the decision maker should encourage the person to participate in making the decision and they should identify all relevant circumstances by identifying the issues the person would consider if they were making the decision. The decision make should establish the person's past and present wishes and feelings, their beliefs and values and other factors the person would be likely to have considered. The decision maker should avoid assumptions about someone's best interests based on their age, appearance, condition or behaviour. Where the person may regain capacity and the decision maker should consider if the decision can be delayed. Where the decision concerns life sustaining treatment the decision maker must not be motivated in any way by a desire to bring about the person's death. No assumptions about the quality of life should be made.
In summary when guiding people to make best interest decisions then the phrase 'doing the right thing' should be at the forefront of their thinking. To gather all the information, analyse and evaluate it thoroughly should lead to the a well justified conclusion or answer. Will writers should conduct a fact find with their clients and then advise based on the information. The final decision will rest with the person making their Will of course since they will have capacity to make it.
Finally if the stones are not in the right order they don't rest easy.
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