Department for Constitutional Affairs. Mental Capacity Act 2005. Code of practice. 2007. (accessed 2 February 2022)



Nursing and Midwifery Council. The code: professional standards of practice and behaviour for nurses, midwives and nursing associates. 2018. (accessed 2 February 2022)

Disputes about a person's best interests: Is there a need to go to court?

10 February 2022
Volume 31 · Issue 3


Richard Griffith, Head of Health Law and Ethics, School of Health and Social Care, Swansea University, considers whether it is necessary to seek an order from the Court of Protection where there is a dispute as to what care and treatment is in the best interests of a patient lacking capacity

Where a person lacks mental capacity to make decisions about care and treatment, then nurses have a duty to act in that person's best interests. This duty is set out in section 1(5) of the Mental Capacity Act 2005, which requires that:


The duty is further reinforced by standard 4 of the Nursing and Midwifery Council's (2018)Code, which places an obligation on nurses to act in the best interests of people at all times by:


The Mental Capacity Act 2005 does not define a best interest. Instead, it sets out a checklist of factors that have to be taken into account when determining the best interests of a person who lacks capacity. Section 4 of the Mental Capacity Act 2005 requires nurses to consider:


The Mental Capacity Act 2005 does not set out who should determine the best interests of a person who lacks capacity. The Code of Practice to the 2005 Act (Department for Constitutional Affairs (DCA), 2007) suggests that many different people may be required to make decisions or act for a person who lacks capacity and sets out a list of possible decision-makers, depending on the person's circumstances (para 5.8) (DCA), 2007: 69-70). In most situations this will be the carer most directly involved with the person at the time, but the Code of Practice also makes clear that nurses can be decision-makers:

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