Acting in the best interest of the Elder

Acting in the best interests of the elder person.


  1. Principle 4 of the Mental Capacity Act 2005 (“MCA”) as stipulated in Section 1(5) sets out the parameters and requires those who are involved in the mediation process and potentially making the decision on behalf of the elder to act in the best interests of the elder. 
  2. Principle 4 states that:
    1. “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 best interests".
  3. What is in the “best interests” of the elder is set out in Section 4 of the MCA which is set out in full at the foot of this note.
  4. Section 4 sets out some preconditions and stipulates that:
    1. The issue should not be decided on the basis of the age or appearance of the elder
    2. Checks should be made to se if the elder may later regain the ability to make that decision
  5. The first significant qualification (Section 4(4)) is that the person now making the decision must permit and encourage the elder to participate in the decision and take any steps he can to assist/improve the elder’s ability to participate in the decision. These might include:
    1. Using a different form of communication – sign language, lip reading
    2. Providing information in more accessible formats – photographs, graphs, illustrations
    3. Breaking the information down into easy to understand points
    4. Asking them about a decision at a time and location where the elder feels most relaxed and at ease
    5. Treating a medical condition – so the elder is more lucid
  6. The second significant qualification (Section 4(6)) is that the person responsible for the decision must consider the elder’s: 
    1. past and present wishes – which will include expressions of pleasure or distress or emotional responses from the elder 
    2. feelings – previous written statements are considered to be persuasive
    3. beliefs – what strong views did the elder hold in the past which could have a bearing on the decision now
    4. values – cultural background, religious beliefs, political convictions, past behaviour or habits
  7. These stipulations are important because the person must not substitute what they consider would be the correct decision on the basis of their rationale. The criteria to be considered are not just those the decision maker believes to be important. It is the criteria the elder would have selected and what the elder would have concluded, however illogical the person considers them, that are important.
  8. The decision maker is required to take into account the views of others such as:
    1. An attorney appointed by an LPA 
    2. A deputy appointed by the Court of Protection 
    3. Anyone involved in caring for the elder
    4. Anyone interested in the welfare of the elder – family cares, close relatives, an advocate
    5. Written wishes - What do these people think and what information can they give on the elder’s wishes, feelings, beliefs and values before they lost capacity?
  9. It should be recognised that what is in the “best interests” of the elder may change over time and the elder’s interests should be reviewed regularly. Those involved in the mediation should be prepared to reflect and reconsider their previous decisions 
  10. The requirements of Section 4 are supplemented by Chapter 5 of the MCA Code of Conduct which makes clear that before anyone can make the decision they must be reasonably satisfied the elder has lost their mental capacity to take the decision.
  11. It is also relevant in the context of a mediation to take into account the provions of paragraph 15.10 of the MCA Code of Conduct which provides that:
    1. “15.10. In mediation, everybody needs to take part as equally as possible so that a mediator can help everyone involved to focus on the person‘s best interest. It might also be appropriate to involve an advocate to help communicate the wishes of the person who lacks capacity.”
  12. Those participating in the mediation should to be surprised to find the mediator checking how the elder was involved and would have thought and inviting participants not to see it through their eyes but the elder’s eyes.
  13. Considering the “best interests” of the elder is a collaborative process for many to contribute but at the end of the day you are looking to implement a decision based on how the elder would have approached the decision based on their values and feelings and not substituting them with your own views however much you believe your logic and rationale are far superior/correct. It is hard to do but you must follow the principles and guidelines set out in the MCA and the Code of Conduct
  14. We should also mention the “best interest” principle does not apply where someone with capacity has previously made an advance decision to refuse medical treatment even if others now think the decision to refuse medical treatment is not in their best interests.
MCA Section 4 

Best interests

(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.

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(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) 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.

(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.

(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.

(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as 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 lasting power of attorney granted by the person, and
(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). 

(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.

(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.

(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.

(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.





Share by: