Further information

Legislation on capacity

There is now a variety of legislation across the UK that supports doctors when they treat patients who lack capacity.

England and Wales - the Mental Capacity Act

Introduced in two phases, in April and October 2007, the Mental Capacity Act provides a legal framework for dealing with patients who lack capacity. It replaces a mix of common-law principles and accepted best practice.

The key principles of the Act are based on an individual’s fundamental right to autonomy. All practical steps must be taken to help individuals to make a decision themselves.

The assessment of capacity is decision-specific, and there are two stages:

• Is there an impairment of or disturbance in the functioning of the patient’s mind or brain? If so,
• Has it made the person unable to make this particular decision? All decisions made on behalf of someone who lacks capacity should be made in their best interests. The Act includes a checklist of factors to be considered.

The Act also introduces a lasting power of attorney (LPA). A competent adult can nominate an LPA who will be able to make decisions about the continuation or withdrawal of life-sustaining treatment.

The LPA comes into effect when a patient loses capacity, and it is up to a medical professional to decide when this is.

More information can be found in the Mental Capacity Act Code of Practice.

Scotland

Under the Adults with Incapacity (Scotland) Act 2000, when dealing with people who lack capacity, you should apply the general principles of

• Benefit
• Minimum intervention
• Take account of adult’s wishes and feelings
• Consult others
• Encourage exercise of residual capacity.

The Act also introduced a welfare power of attorney, which can include powers to consent (or to refuse) medical treatment when a patient loses capacity. The extent of these powers is limited by excepted treatment regulations.

More information can be found in the code of practice for the Act – part 5 covers decisions about medical treatment and research.

Northern Ireland

At the moment there is no relevant legislation in Northern Ireland, so decisions should be based on common law and best practice, acting in the best interests of the patient.