Registered nurses have a professional duty under standard 4 of The Code (Nursing and Midwifery Council (NMC), 2018) to act in the best interests of people at all times and, in particular, to:
‘Keep to all relevant laws about mental capacity that apply in the country in which you are practising, and make sure that the rights and best interests of those who lack capacity are still at the centre of the decision-making process.’
In England and Wales the Mental Capacity Act 2005 regulates acts and decisions made in the best interests of a person who lacks the mental capacity to make the decision themselves. To ensure the person's rights are paramount, the principles of the Mental Capacity Act 2005, set out in section 1, require 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, and
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
These principles acknowledge that acting in a person's best interests is an interference in that person's life and rights. The 2005 Act requires that any interference can be justified under Article 8 of the European Convention on Human Rights (ECHR) (1950).
The right to respect for a private and family life
Article 8 of the ECHR (1950) sets out a qualified right to respect for a private and family life. As a qualified right derogation is allowed but the interference with the right must be:
- In accordance with the law
- Necessary in a democratic society and
- In the interests of national security, public safety, economic wellbeing of the country, prevention of crime, protection of health and the protection of the rights and freedoms of others.
The concept of a private life is broadly interpreted and includes personal autonomy and personal dignity (R (on the application of Oliver Leslie Burke) (Respondent) v General Medical Council (Appellant) & The Disability Rights Commission & Others (Interveners) [2005]). Although acting in the best interests of a person who lacks capacity under the Mental Capacity Act 2005, section 4, is in accordance with the law, it must also be shown to be a necessary and proportionate interference with that person's right to respect for a private and family life (AC (Capacity: Hoarding: Best Interests) [2022]).
Proportionality
Proportionality requires that when making a best interests determination, a registered nurse must consider the interference with the person's rights under Article 8 and balance that interference with the need for action. The requirement to justify an interference with a person's rights protects the person from arbitrary decisions and ensures that best interests decision makers do not act disproportionately to achieve their aim (K v LBX [2012]).
In K v LBX [2012] the Court considered the case of a man with learning disabilities, who lacked capacity to decide on care and residence matters, whose local authority argued that he needed to move away from his father and brother into supported accommodation so that he could gain more independence. The Court acknowledged that such a decision would give rise to an interference with the man's right to respect for both his private and family life under Article 8 of the ECHR (1950).
The Court of Appeal held that when undertaking a best interests determination there was no initial presumption in favour of maintaining a family life at all costs. What was required under the Mental Capacity Act 2005, was a consideration of the person's best interests in accordance with section 4 of the Act that is then followed by an assessment of whether the proposed course of action is necessary and proportionate so as to properly justify any interference with the person's rights under Article 8.
In dismissing the appeal against the man moving to supported accommodation and setting out their guidance for future cases, the Court of Appeal held that the safe approach in Mental Capacity Act 2005 cases is to:
- Ascertain the best interests of the incapacitated adult on the application of section 4 of the Act
- Then ask is there a violation of Article 8 rights and whether that violation is nonetheless necessary and proportionate.
Necessary interference
Article 8(2) of the ECHR (1950) requires any interference to be necessary in a democratic society. The European Court of Human Rights holds that ‘necessary’ in this context does not have the flexibility of such expressions as useful, reasonable or desirable but implies the existence of a pressing social need for the interference in question (Dudgeon v United Kingdom (1981)).
Although acting in the best interests of a person who lacks capacity could be justified as a pressing social need, a restriction on a Convention right cannot be regarded as necessary in a democratic society unless, among other things, it is also proportionate to the legitimate aim pursued. The Courts will consider whether, in the light of the case as a whole, the reasons to justify interference were relevant and sufficient to be necessary and whether the measures were proportionate to the legitimate aims pursued (Z v Finland (1997)).
In AC (Capacity: Hoarding: Best Interests) [2022] the Court held that it would be in the best interests of a 92-year-old woman who lacked capacity to be allowed to return to her home to live with her son on a trial basis following a period in a care home. Although the son had a hoarding disorder, which raised concerns about the cleanliness and safety of the property, he had made progress recently, the property had been cleared and the woman continued to express a strong desire to return home. The woman's continued placement in a care home could not now be justified as necessary to meet a pressing social need or a proportionate interference with her rights under Article 8 of the ECHR (1950).
Protecting the rights and freedoms of others
Article 8 of the Convention allows interference with a person's right to respect for a private and family life where this is justified as proportionate and necessary to protect the rights and freedoms of others.
In A local authority v TA [2021] the Court of Protection made an order in the best interests of an 87-year-old woman, who had severe dementia, for the immediate removal of her son from her property following his abusive and controlling behaviour that had left her isolated, and his repeated failure to provide her with access to health care and her family.
The Court held that the interference with the son's rights was justified as proportionate and necessary. The Court concluded that:
- To act in a necessary and proportionate way required the identification of the various options available and choosing the one which was least restrictive of a person's rights to achieve the legitimate aim
- It was necessary to understand all the available alternatives to the restriction being proposed and justify the chosen option by making clear, reasoned points about why the option was selected
- Such justification should include consideration of the person's individual situation (and the impact for other people's rights, when relevant)
- It is important to ensure that a restriction is not discriminatory; a restriction which may appear to be the least restrictive must also be non-discriminatory
- Proportionality involves balancing the rights of the individual against the rights of the wider community. Public bodies may need to make restrictions that keep vulnerable people safe, but proportionality ensures they do not go too far
- The restriction must be no more than is necessary to keep the person or others safe and the more severe it is, the more that is required to justify the interference.
Conclusion
The fifth principle of the Mental Capacity Act 2005 requires that any best interest determination made under section 4 of the Act must be necessary and proportionate to the rights and needs of the person who lacks capacity.
Acting or making decisions in the best interests of a person who lacks capacity represents an interference with a person's right to respect for a private and family life under Article 8 of the ECHR (1950).
To ensure that the acts and decisions made for a person who lacks capacity are lawful, the Courts require decision makers to follow the requirements of section 4 of the Mental Capacity Act 2005 to show that the acts and decisions are in the person's best interests. They must then justify any interference with the person's right to respect for a private and family life by showing the acts and decisions are also necessary and proportionate.
KEY POINTS
- Registered nurses have a professional duty to act in the best interests of people who lack capacity
- Acting in the best interests of a person who lacks capacity must also be justified as a necessary and proportionate interference with that person's rights
- Acting in a necessary and proportionate way requires the identification of the various options available and choosing the one which is least restrictive of a person's rights
- The interference must be no more than is necessary to keep the person or others safe and the more severe it is, the more evidence is required to justify the interference