Mental health law briefing 163 – How do you assess best interests?
The Court of Protection has recently provided guidance on how to assess what is in an individual’s best interests under the Mental Capacity Act 2005 (MCA) and particularly the extent to which an incapacitated individual’s own or potential wishes should impact on that decision.
The case concerned Mrs G, a mental health patient, who lacked capacity about how to manage her property and affairs. A deputy had been appointed under the MCA to manage her financial affairs and the question that arose was whether or not her deputy should make payments from Mrs G’s funds to her adult daughter, C, by way of maintenance of C. All the parties in the case agreed that the court could make an order directing such payments if it considered that it was in Mrs G’s best interests to do so. The court held that it was in her best interests for such maintenance payments to be made. Of particular interest are the court’s comments about how to approach the best interests test under the MCA.
Substituted judgement and best interests
In considering how the best interests decision was reached in this particular case, the court examined the importance of ‘Substituted Judgement’. As detailed by the judge, ‘Substituted Judgement’ is where the court makes a decision which on the evidence the incapacitated individual, acting reasonably, himself would have made if they had capacity. Prior to the introduction of the MCA, ‘substituted judgement’ was one of the ways the courts in financial cases of this sort reached decisions on behalf of incapacitated individuals.
However with the introduction of the MCA, s1(5) confirms that a decision made on behalf of an incapacitated individual must be in their best interests. ‘Best Interests’ is not defined by the MCA however section 4 formally sets out a number of provisions as to how decision makers should determine best interests. These provisions include consideration of all the ‘relevant circumstances’ and, where practicable, encouraging the incapacitated individual to participate in the decision to be made. The court in this case felt that section 4(6) in particular had a “bearing on what is meant by best interests in the [MCA].” At paragraph 55 the Judge confirmed:
The best interests test involves identifying a number of relevant factors. The actual wishes of P can be a relevant factor: section 4(6)(a) says so. The beliefs and values which would be likely to influence P’s decision, if he had capacity to make the relevant decision, are a relevant factor: section 4(6)(b) says so. The other factors which P would be likely to consider, if he had the capacity to consider them, are a relevant factor: section 4(6)(c) says so.” 
The court accepted that the process in section 4(6) involved “… an element of substituted judgment being taken into account…”. However, the court reached the decision that “…it is absolutely clear that the ultimate test for the court is the test of best interests and not the test of substituted judgment.” The court found that in practice the substituted judgment process of s4(6) could be subsumed within the overall concept of best interests.
The Court noted the guidance in the Code of Practice to the MCA at paragraph 5.38 which states:
In setting out the requirements for working out a person’s ‘best interests’, section 4 of the Act puts the person who lacks capacity at the centre of the decision to be made. Even if they cannot make the decision, their wishes and feelings, beliefs and values should be taken fully into account – whether expressed in the past or now. But their wishes and feelings, beliefs and values will not necessarily be the deciding factor in working out their best interests. Any such assessment must consider past and current wishes and feelings, beliefs and values alongside all other factors, but the final decision must be based entirely on what is in the person’s best interests.
Previous case law has confirmed that having gone through the steps set out in s4 of the MCA, the decision maker “… must then form a value judgement of his own…” in reaching a best interests decision.
The court then considered whether the term ‘interests’ in the best interests test was strictly confined to the ‘self interests’ of the incapacitated individual. In this particular case, the judge was considering whether maintenance payments to Mrs G’s daughter could be in Mrs G’s best interests. Mrs G would never know that the payments were being made; there would be no reaction or indeed pleasure from that fact. However having examined the precise wording of section 4, the court found that the word “interests” did not confine the court to considering just the ‘self interests’ of the incapacitated individual. Indeed the ourt found that their actual wishes or the wishes that they would have formed if they had capacity may be altruistic and not in any way, directly or indirectly selfinterested, and these could be relevant factors in deciding best interests.
The case provides useful guidance for those having to consider what amounts to an incapacitated individual’s best interests. In particular, whilst the person’s past and present wishes are to be taken into account, the ultimate test is the wider ranging ‘best interests’ test rather than the ‘substituted judgement’ test.
It is also of interest to note that the court found that best interests decisions were not confined to the “self interests” of the incapacitated individual. Best interests decisions could result in altruistic decisions where the incapacitated person may on the face of it receive no tangible benefit from the decision.
 Re G(TJ)  EWHC 3005 (COP),  All ER (D) 218 (Nov)
 Ibid para 26
 Ibid para 55
 Ibid para 47 referencing para 39 of In re P (Statutory Will)  Ch 33
 Ibid see para 56
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.