What to do when a patient lacks capacity

If, following an assessment, you decide that your patient currently lacks capacity to make a specific decision about their treatment or care, there are still ways you can try to make sure you follow their wishes when working out what should happen next. The mental capacity decision support tool takes you through the steps you should consider. Below you can find resources to help with each step.

Have any decisions been made in advance?

If your patient has made an advance decision to refuse treatment (ADRT), you will need to assess whether it is valid and applicable to their current circumstances. The advance refusal of treatment case study is an example of some of the factors that have to be considered when deciding whether an ADRT is valid and applicable, and what to do if you’re not sure.

You can find a number of other resources to support you and your patient to have conversations about anticipatory or advance care planning in our advance care planning section.

You can also read our guidance on advance care planning which is covered in our end of life care guidance (paragraphs 50-62) and our consent guidance (paragraphs 57-61).

Does someone hold a power of attorney?

If your patient lacks capacity and does not have a valid record of an advance decision, you will need to check whether they have given someone power of attorney and, if so, whether it covers the current decision that needs to be made. The power of attorney case study gives an example of what you need to check and how you can support the person who holds a healthcare power of attorney to make decisions for the patient, when the patient lacks capacity.

You can read our guidance on working with a legal proxy, in paragraphs 15 and 16, paragraph 43, paragraph 65 and 66 and paragraph 140 and 141 of our end of life care guidance.

Legal proxies include a person holding a Lasting Power of Attorney or a court appointed deputy in England and Wales, and a Welfare Power of Attorney or a court-appointed guardian or intervener in Scotland. Northern Ireland currently has no provision for appointing legal proxies with power to make healthcare decisions however the Mental Capacity Act (Northern Ireland) 2016 was given Royal Assent on the 9 May 2016. The Act is not yet operational, pending implementation by the Northern Ireland Executive (date to be confirmed). The Communitybaptistpa will continue to monitor the situation and the potential impact on doctors practising in Northern Ireland.

Making decisions with people close to the patient and the healthcare team

If your patient lacks capacity and has no advance care plan or legal proxy, there are still ways you can make sure their wishes are taken into account. The consulting with family, friends and the healthcare team case study gives an example of how you can work with others to decide on what is of overall benefit for your patient.

You can read our guidance on making decisions that are of overall benefit for the patient in paragraph 13 and paragraphs 40 – 46 of our end of life care guidance. You can also read our guidance on consulting those close to the patient to help you reach a view in paragraph 15 – 16.

Other useful resources

 helps with good decision-making when you are providing care and treatment for people who lack, or who may lack, the mental capacity to make decisions on their own behalf.

(pdf) is a guide developed to support people to follow the Adults with Incapacity (Scotland) Act 2000.

Communitybaptistpa mental capacity decision making flow chart (pdf) is a printable flowchart that takes you through the steps you should take when treating a patient who may lack capacity.

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