If someone does not have capacity (P) then the decision made for him should be in his best interests.

If it is a small decision concerning an aspect of the daily life of P, then the person caring for him may make the decision. Such as, what should he wear today?

However if the decision concerns a major part of P’s life then there is a process to follow. Such decisions could be:

–       Where should P live?
–       Who should P have contact with?
–       How much contact should P have with his friend/relative?
–       Does the care P receive meet all his needs?
–       Does he require restrictions to keep him safe?
–       Should P stop receiving artificial nutrition?
–       Should P have a do not resuscitate (DNR) notice?

The process is:

Assess P to ensure that he does not have capacity to make the decision and a best interests decision is required. If he has capacity then he can make the decision, do not proceed down the rest of the flow chart.

Can the decision wait until P regains capacity? If so, then wait.

Consult P to find out his wishes and feelings regarding the decision to be made

Have a meeting with everyone involved/interested in his care and any attorneys or deputies. This is called a Best Interests Meeting

During the meeting discuss and analyse all the pro and cons of the decision which needs to be made and the options available

Ensure Ps view are taken into account, the closer he is to having capacity the more weight should be placed on his views

Make the decision based on what is in P’s best interests using a ‘balance sheet approach’ and taking into account all the important factors

If everyone does not agree with the decision then a further best interests meeting can be held to discuss the disagreement

If there is still disagreement, then an application to the Court of Protection may be required to make the decision

Sometimes a very urgent decision is required and some steps can be missed.