Who decides?

Assessing whether an adult patient has the capacity to decide about their medical treatment can be daunting

  • Date: 21 February 2012

THE TREATMENT of adults with incapacity generates a large number of calls to MDDUS. The legislation designed to protect incapacitated adults can appear daunting, but its aim is simple – to ensure patients who cannot make or communicate decisions for themselves about medical treatment have those decisions made on their behalf in their best interests.

In Scotland, the relevant legislation is the Adults with Incapacity (Scotland) Act 2000, while in England and Wales the Mental Capacity Act 2005 applies. In Northern Ireland, decision-making is governed by common law. Both Acts have a number of common themes: decisions must be made on the basis of most benefit to/best interests of the patient, the least restrictive option should be preferred, account should be taken of the patient’s previous expressed wishes if known, and the views of relatives and carers should be taken into consideration.

Both Acts have provision for a legally recognised proxy decision-maker to be identified by the patient before capacity is lost (welfare attorney in Scotland, lasting power of attorney in England) and for court appointed decision-makers once capacity is lost (welfare guardians in Scotland, court appointed deputies in England).

Key differences include the requirement in Scotland only to complete a prescribed certificate of incapacity form for treatments under the Act, which can be signed by doctors, but also by appropriately trained dentists, nurses and opticians. In England, specific provision is made for independent mental capacity advocates to be appointed to support an incapable adult who has no family or friends, and advance directives refusing treatment are recognised as legally binding in the English Act only. A special Court of Protection exists in England to oversee the workings of the Act.

Assessing mental capacity can cause anxiety for doctors who do not specialise in this field, but the principles are straightforward – on questioning the patient, a view must be taken on whether there is understanding of the treatment offered, the reasons for the treatment and the potential side-effects or consequences. There must be an ability to retain this information long enough to make a decision, and the patient must be capable of communicating the decision clearly, with support where necessary. In those with memory impairment, consistency of response on repeated interview is important. It is also important to remember that capacity is task specific – for example, a patient may have difficulty with the Times crossword but still be able to decide on an amputation.

Patients with fluctuating capacity can be a particular challenge, and in difficult or borderline cases it is useful to seek a second opinion from a specialist in this area.


If a patient’s relative says they have power of attorney, can they discuss the patient’s care and decide on treatment?

Firstly, confirm whether the patient concerned has lost capacity – the proxy decision-making powers only come into force when the patient is incapable of decision-making. If capacity is retained, treatment should be the same as for any other individual in terms of consent. Secondly, clarify which type of attorney power is held – these can be for financial or welfare decisions or both. Only powers covering welfare would be relevant for medical treatment decisions.

What happens if there is disagreement between a power of attorney and medical staff over the patient’s best interests?

Every attempt should be made to reach a consensus when possible. The GMC advice on resolving disagreements includes involving an independent advocate, consulting a more experienced colleague, holding a case conference or using local mediation services. The Mental Welfare Commission (Scotland) may also assist. Otherwise, seek legal advice on applying to the appropriate court/statutory body for review or an independent ruling.

Which doctor should complete a certificate of incapacity for treatment in Scotland?

The doctor providing or authorising the treatment is responsible for this as he would normally be responsible for obtaining informed consent from the patient. If the patient is not well known to the doctor and there is uncertainty over capacity, seek further information from the doctor who knows the patient best.

What happens in an emergency, when there is no time to seek information from relatives/ carers and no advance directive by the patient?

The normal certification process specified in the Adults with Incapacity (Scotland) Act is not required where treatment is needed in an emergency to preserve life or prevent serious deterioration in health. In England, similar direction is contained in the Mental Capacity Act, with treatment allowed in these circumstances on a ‘best interest’ basis. GMC guidance on consent reinforces this advice, and reminds doctors that the ‘least restrictive option’ in terms of treatment should be preferred.

What do I do if I believe a power of attorney is abusing his authority?

In Scotland, either the local authority or the Mental Welfare Commission can be contacted with concerns. The Office of the Public Guardian oversees financial powers of attorney only. In England, the Office of the Public Guardian oversees lasting powers of attorney for both welfare and financial matters.

Dr Barry Parker is a medico-legal adviser at MDDUS


This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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