Reforming best interests: the road towards supported decision-making

Decisions under the Mental Capacity Act (MCA) may be made in a person’s best interest. This concept is objective, unclear and places discretion in the hands of the decision-maker. Currently, a person’s wishes, feelings, beliefs and values are not accorded primacy status amongst the checklist of factors to be considered under Section 4 MCA. In 2017, the Law Commission (LC) in their report on Mental Capacity and Deprivation of Liberty proposed amending the best interest test under Section 4 of the MCA to require the decision-maker to ascertain wishes and feelings and elevate the status of the ascertained wishes and feelings amongst the other factors under Section 4. These proposals, contained in a Draft Bill, would be of general application under the Act. This paper argues that the trajectory begun by Lady Hale in the Supreme Court in Aintree in asserting the individual at the heart of her destiny and the LC proposals are to be welcomed but do not go far enough to be aligned with the principle of supported decision-making set out in international frameworks, such as the Convention on the Rights of Persons with Disabilities.