What powers does the Act give to health professionals?
An action or intervention will be lawful – ie health professionals will enjoy protection from liability – where the decision maker has a reasonable belief both that the individual lacks capacity to consent to what is proposed, and that the action or decision is in his or her best interests. (See card 5 on how to assess someone’s best interests).
It applies to anyone making a decision on behalf of another, irrespective of whether they have a professional relationship with the incapacitated individual. It could include, for example, taking an incapacitated stranger by the arm to assist them cross a road. In relation to medical treatment, it is applicable not only to an episode of treatment itself, but also to those necessary ancillary procedures such as conveying a person to hospital.
How far do these powers extend?
There are limits to these powers. A valid advance decision, and a valid decision by an attorney or a court appointed deputy, would take precedence.
The Act also sets limits to the extent to which the freedom of movement of an incapacitated person can be restricted. An incapacitated person can only be restrained where there is a reasonable belief that it is necessary to prevent harm to the incapacitated person. Any restraint must be proportionate to the risk and of the minimum level necessary to protect the incapacitated person. (For more information about restraint, see card 7).
The onus is on the person wishing to act to justify as objectively as possible his or her belief that the person being cared for is likely to be harmed unless some sort of physical intervention or other restraining action is taken. Although reasonable use of restraint may be lawful, the Act makes it clear that it will never be lawful to deprive a person of his or her liberty within the meaning of Article 5(1) of the European Convention on Human Rights without appropriate authorisation. (See cards 7 and 8 for more information on deprivation of liberty).
When is court approval required?
Before the Act came into force, the courts had decided that some decisions were so serious that each case should be taken to court so that a declaration of lawfulness could be made. Under the Act, the following cases should continue to go before the court:
- proposals to withdraw or withhold artificial nutrition and hydration from patients in a persistent vegetative state or a minimally-conscious state
- cases involving organ or bone marrow donation by a person lacking the capacity to consent
- proposals for non-therapeutic sterilization – some termination of pregnancy cases
- cases where there is a doubt or dispute that cannot be resolved locally about whether a particular treatment will be in a person’s best interests. (Case law has emphasized that the Act must not be used to suppress legitimate disagreements about an individual’s best interests).
- cases involving ethical dilemmas in untested areas.
Card 6 (PDF)