Ethics

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6. Adults who lack capacity

Where a patient lacks capacity to consent to treatment, can consent be sought from the relatives?

In England and Wales, the Mental Capacity Act allows people over 18 years of age, who have capacity, to make a Lasting Power of Attorney appointing a welfare attorney to make health and personal welfare decisions on their behalf once capacity is lost. The Court of Protection may also appoint a deputy to make these decisions. Neither welfare attorneys or deputies can demand treatment which is clinically inappropriate. Where there is no welfare attorney or deputy the doctor may treat a patient who lacks capacity, without consent, providing the treatment is necessary and in the patient’s best interests. The Act also requires doctors to take into account, so far as is reasonable and practicable, the views of the patient’s primary carer (see also Card 1 list: ‘Capacity,’ ‘MCA’).

In Scotland, the Adults with Incapacity (Scotland) Act allows people over 16 years of age to appoint a welfare attorney who has the power to give consent to medical treatment when the patient loses capacity. The Court of Session may also appoint a welfare guardian on behalf of an incapacitated adult. Neither welfare attorneys or guardians can demand treatment which is judged to be against the patient’s interests. Where there is no proxy decision maker, doctors have a general authority to treat a patient who is incapable of giving consent to the treatment in question. The Act also requires doctors to take account, so far as is reasonable and practicable, the views of the patient’s nearest relative and his or her primary carer. (See also Card 1 list: ‘Scotland’.)

In Northern Ireland, no person can give consent to medical treatment on behalf of another adult. As the law currently stands, doctors may treat a patient who lacks capacity, without consent, providing the treatment is necessary and in the patient’s best interests (see Card 8 on determining ‘best interests’). Even where the views of people who are close to the patient have no legal status in terms of actual decision making, it is good practice for the health care team to consult with them in assessing the patient’s best interests. This may also be a requirement of the Human Rights Act. Any such enquiries should, however, be mindful of the duty of confidentiality owed to the patient (see also Card 1 list: ‘HRA’).

For information about assessing competence see Card 5.

 

Where a patient lacks capacity to consent to treatment and has no relatives or friends who should be consulted?

In England and Wales the Mental Capacity Act requires an independent mental capacity advocate (IMCA) to be consulted about all decisions about ‘serious medical treatment’ or place of residence where patients lack capacity and have nobody appropriate to speak on their behalf (see also Card 1 list: ‘Capacity’, ‘MCA’).

There is no such obligation in Scotland and Northern Ireland.

 

Can treatment be provided to a patient without seeking consent if he or she is detained under mental health legislation?

Mental health legislation permits doctors to treat a patient compulsorily for a mental disorder, although it is still good practice to explain the treatment to be provided and, wherever possible, to seek the patient’s agreement.

The legislation does not provide the doctor with authority to proceed where the treatment is for a condition unrelated to the mental disorder. In those circumstances, the patient’s competence should be assessed and, if he or she is deemed to lack decision-making capacity, the doctor should act in the patient’s best interests. (See also Card 8 on determining ‘best interests’, Card 5 on assessment of competence and Card 1 list: ‘Capacity’, ‘MCA’, ‘Consent’, ‘DoH’, ‘MDU’, ‘MPS’.)

 

Can a patient who lacks capacity be sterilised if the health care team and relatives agree it is necessary?

The sterilisation of a minor or a mentally incompetent adult will, in virtually all cases, require the prior approval of a court.

Unless sterilisation is a necessary consequence of a procedure carried out for therapeutic purposes, such as treatment for cancer, doctors are advised to seek legal advice. (See also Card 5 on assessment of competence and Card 1 list: ‘Capacity’, ‘MCA’, ‘0-18 years’, ‘Children’.)

 

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Card 6: Adults who lack capacity