Who is the best interests decision maker?

The decision about who is the Best Interests decision maker is a crucial point, and the unhelpful answer is that it depends on the decision.

If someone holds a Lasting Power of Attorney for health and welfare (LPA – see below) or is appointed as a deputy for health and welfare (see below) then they are likely to be the best interests decision maker for decisions about care or medical treatment, where the patient lacks capacity to make those decisions for themselves.

Otherwise, for day to day decisions about care or activities of daily life, it is likely to be the person’s primary carer.  (This will often be the parent(s) who may have already cared for that young adult all their lives making decisions under parental responsibility.  But from the age of 16, this is governed by the MCA, and not a right under parental responsibility).

For decisions about serious medical treatment, the law regards the decision maker as being the person responsible for delivering the treatment – eg the key surgeon or doctor.

Understandably, this can cause distress and conflict where a parent who has made every decision all the child’s life is then told that the parent is not the sole decision maker when a child over 16 needs serious medical treatment.

In any case, the decision maker must make a best interests decision – it is not a “blank cheque” to make any decision they like, in the same way that the patient themselves could have if they had capacity to do so.  This means respecting the obligations under the MCA for how best interests decisions must be made, and in particular the collaborative approach to consulting others, involving the patient and putting weight on their wishes and feelings, values and beliefs.