Making decisions on behalf of people who lack capacity to make decisions for themselves can often be very difficult for doctors and Wayne Martin and colleagues raise some significant issues on the matter (BMJ 2009; 339:b4667). We agree that the best interests of a patient may be shaped by the “best interests” of others, though using the same term for both capacitated and incapacitated people immediately runs the risk of creating further confusion when, in law, it can only be applied to the latter. Research that the Mental Health Foundation conducted, together with Bristol and Bradford Universities (Making Best Interests Decisions: People and Processes, Mental Health Foundation, 2012) showed that practitioners frequently thought long and hard, as part of the best interests decision-making process, about the circumstances and needs of family carers of people who lacked capacity. And despite Martin et al’s rather sceptical view of what should be taken into account in assessing best interests, this was done by using the best interests ‘checklist’. For example, a person’s wishes and feelings, beliefs and values, often identified through consultation with family carers, could include their relationships, dependencies and expectations of others close to them. Lasting Powers of Attorney provide a more formal way of potentially addressing these issues in advance.

However there is an important point about the legal focus of best interests being on the individual who lack capacity to make the decision in question. The history of care and treatment for people with learning disabilities, mental health problems and dementia in this country and elsewhere has only recently moved out of a phase marked by institutional abuse and disregard of individual’s rights to make decisions for themselves, or to have proper legal safeguards when decisions were made on their behalf. Decisions were all too often made by professionals (and sometimes family carers too) on behalf of people who lacked capacity which were clearly not in their best interests (but probably could have been defined as in the best interests of the professionals or carers involved). Organisations representing these groups as well as professionals’ organisations such as the BMA fought long and hard for the introduction of the Mental Capacity Act to provide a much clearer legal framework with safeguards and protections for patients, as well as professionals and family carers, to help prevent this from happening in the future and best interests represent one aspect of this.

As more empirical evidence about mental capacity is gathered we may well be able to improve on best interests but as it currently stands, when properly applied, it still represents a way of ensuring as full a range of factors pertaining to the individual take centre stage when making a decision, as well as providing safeguards. It’s certainly important that the Act is applied appropriately and sensitively where there may be a number of parties involved in a decision. But it’s also important that the voices of those that have capacity don’t overwhelm or prevent a thorough representation of the views of the person who lacks capacity.

Toby Williamson
Head of Development & later Life
Mental Health Foundation

Competing interests: None declared