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:
- 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.
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:
- Balancing the need to act in the best interests of people at all times, with the requirement to respect a person's right to accept or refuse treatment
- Making sure informed consent is obtained and documented before carrying out any action
- Keeping to all relevant laws about mental capacity that apply in the country of practice, and making sure that the rights and best interests of those who lack capacity are still at the centre of the decision-making process.
Determining a person's best interests
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:
- All the relevant circumstances of the case
- Whether it is likely that the person will regain capacity and whether the decision on care and treatment can wait until capacity is restored
- So far as reasonably practicable, the steps needed to permit and encourage the person to participate, or to improve their ability to participate, as fully as possible in any act done for them and any decision affecting them
- So far as is reasonably ascertainable:
- The person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when they had capacity)
- The beliefs and values that would be likely to influence the decision if the person had capacity
- The other factors that they would be likely to consider if able to do so
- Taking into account, if it is practicable and appropriate to consult them, the views of:
- Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind
- Anyone engaged in caring for the person or interested in his welfare
- Any donee of a lasting power of attorney granted by the person
- Any deputy appointed for the person by the court
- As to what would be in the person's best interests.
Can nurses determine best interests?
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:
- In the case of treatment, a nurse, doctor or other member of healthcare staff responsible for carrying out the particular treatment or procedure is the decision-maker
- Where nursing is provided, the nurse will be the decision-maker, but
- If a lasting power of attorney is in force or a deputy has been appointed by the Court of Protection, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority.
Nurses can and should make best interests decisions when providing nursing care or treatment to a person who lacks capacity. Nurses are also protected by the Mental Capacity Act 2005 in relation to that nursing care and treatment.
Section 5 of the Mental Capacity Act 2005 provides that, where a nurse carries out an act in relation to care or treatment, they will not incur any liability if they reasonably believe that the person lacks capacity and that they are acting in that person's best interests.
Disputes as to best interests
Sections 4 and 5 of the Mental Capacity Act 2005 and chapter 5 of the Code of Practice (DCA, 2007) suggest that nurses can determine the best interests of a person in their care who lacks capacity and they will be protected for acts in relation to care and treatment that they reasonably believe are in that person's best interests.
The purpose of section 1(5) and section 4 of the 2005 Act is to place a duty on the decision-maker to come to a best interests determination by considering the checklist of factors from the person's point of view (Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013]). It is not uncommon that others concerned with the person's care, such as other health professionals, family, friends and social workers, come to a view as to what care and treatment would be in that person's best interests.
In the case of a dispute when a best interests decision-maker takes the view that, because they consulted with the person's family, friends and other professionals, under section 4 of the Mental Capacity Act, it is deemed that the best interests checklist has been fulfilled and the decision-maker would be protected from liability under section 5, if they were to proceed with the care and treatment.
The practical application of the best interest checklist is considered in chapter 5 of the Code of Practice (DCA, 2007). It suggests that the decision-maker should at least seek to resolve a dispute by involving an advocate, allowing different views to be aired in a best interests meeting or encouraging those with concerns to make a complaint.
Is there a need to go to court?
The provisions of sections 4 and 5 of the Mental Capacity Act 2005 and guidance in chapter 5 of the Code of Practice (DCA, 2007) suggest that, even though there is a dispute as to a person's best interests, a nurse can proceed and will be protected by the 2005 Act as long as they reasonably believe that it is in the person's best interests to do so.
Chapter 8 of the Code of Practice (DCA, 2007), however, provides very different guidance in the case of an unresolved dispute. Chapter 8 suggests that the Court of Protection is involved in all cases where there is a doubt or dispute about whether care and treatment will be in a person's best interests.
In NHS Trust v Y [2018], the UK Supreme Court recognised the seemingly contradictory guidance in chapters 5 and chapter 8 of the Code of Practice (2007). The Supreme Court agreed that nurses and doctors treating and caring for a person who lacks capacity to make those decisions did not need to come to court where there was no dispute as to best interests, including where that decision is to withdraw life-sustaining treatment from the person.
Where there is a dispute as to best interests, the situation is different. Both the UK Supreme Court in NHS Trust v Y [2018] and the European Court of Human Rights in Burke v United Kingdom (2006) hold that an application to the Court of Protection should be made. The European Court of Human Rights confirmed that the need to approach a court in the event of a dispute as to the best interests of a person is an essential part of the protection of human rights.
While nurses can be decision-makers and determine the best interests of a person in their care who a lacks capacity, those determinations must be based on consensus. Where there is an unresolved dispute as to that person's best interests, the only person who can provide a definitive decision as to best interests is a judge of the Court of Protection.
London North West University Hospitals NHS Trust v Mrs W [2021] concerned a dispute over best interests following the removal of a nasogastric tube without consultation with Mrs W's health and care attorneys, who wanted her to continue to have nutrition. The Trust acknowledged that it had removed the tube and a drip that was providing hydration, even though they knew that Mrs W's attorneys wanted artificial nutrition and hydration to continue.
The judge was concerned that this was done without an application to the court and whether proceeding to withdraw treatment in the face of a dispute as to the patient's best interests was ordinary practice in the Trust. The court stressed the need to seek an order of the Court of Protection in cases where a best interests dispute remains unresolved.
Conclusion
Nurses have a duty to act in the best interests of a person who lacks capacity and to make a determination of best interests as a decision-maker when they are providing care and treatment to that person. Best interests decisions must be determined by applying the requirements of section 4 of the Mental Capacity Act 2005, which requires consultation with others involved or interested in the person's care.
The best interests determinations made by nurses, and other decision-makers such as health and care attorneys, must come to a consensus as to a person's best interests. Where there is a dispute that cannot be resolved, then the matter must be taken to the Court of Protection for a decision.
KEY POINTS
- Nurses have a legal and professional duty to act in the best interests of a person in their care who lacks capacity
- A nurse can act as a best interest decision-maker and determine what is in the person's best interests in accordance with the checklist set out under section 4 of the Mental Capacity Act 2005
- Nurses' determinations about the best interests of a patient must be based on consensus
- Unresolved disputes as to a person's best interest must be taken to the Court of Protection