New legislation will clarify the position for healthcare professionals caring for patients unable to make their own treatment decisions, as Dr Gerard Panting explains


A major change to English law will be introduced when the Mental Capacity Act 2005 comes into force in 2007. For the first time in England and Wales,competent adult patients will be able to appoint someone they trust to make limited treatment decisions on their behalf if they later become incompetent.

The Act also provides statutory backing to advance treatment decisions (usually refusals), which are already recognised under the common law.

The Act sets out five key principles (Box 1) that reflect current law. It is presumed that adults are competent unless it can be demonstrated otherwise.Moreover, a patient should not be regarded as incompetent unless all practicable steps have been taken to help him or her come to a decision, without success.

The fact that a decision appears unwise – even if life-threatening – cannot be taken as evidence of incapacity.

If the patient is incompetent, any treatment provided should be in his or her best interests.

Box 1: The five key principles of the Mental Capacity Act
  • A person must be assumed to have capacity unless it is established that he lacks capacity
  • A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision
  • An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests
  • Before the act is done, or the decision made, regard must be had to whether the purposes for which it is needed can be as effectively achieved in a way that is less restrictive of the persons rights and freedom of action

Mental capacity

A patient’s ability to decide for himor herself depends on being able to understand the advantages and disadvantages of the proposed procedure or treatment, and take into account reasonably foreseeable complications and what might happen if no decision is made.

In presenting information, doctors should use language that patients can understand, visual aids or anything else that might help comprehension.

Next, the patient must be able to retain that information for as long as is necessary to come to a decision and use it in the decision-making process. Last, but not least, patients must be able to communicate their wishes verbally, or by sign language or some other comprehensible means.

Current law

As the law currently stands, patients in England and Wales who are incompetent should be treated according to their best interests unless there is a valid advance directive in place that prohibits one or more treatment options.

The new Act adds another option – someone appointed under a lasting power of attorney to decide on the patient’s behalf.

Best interests

What amounts to a patient’s best interests will depend on his or her specific circumstances and cannot be confined to purely medical considerations. All factors relevant to that individual must be considered together, and that might include religious beliefs or values expressed by the patient when competent.

All this requires consultation with anyone responsible for caring for the patient or interested in his or her welfare, as well as anyone with a lasting power of attorney or appointed by the court. No decisions can be made merely on the basis of age, appearance or behaviour, and even if incapable, patients must be encouraged to participate in the process. Deciding what amounts to someone’s best interests is therefore a demanding task.

Advance decisions

The Act allows competent individuals to make advance decisions about specified treatments that should not be carried out or continued in certain circumstances. It goes on to address the difficult issue of applicability, in particular that such a decision does not apply to life-sustaining treatment unless it is verified in writing, signed by the patient and witnessed by another person. It must include the statement that the decision is valid "even if life is at risk”.

There is a further safeguard, which ensures that health professionals who are in doubt as to the validity or applicability of an advance decision can provide treatment without incurring legal liability. No liability is incurred for withholding or withdrawing treatment if those responsible for care believe that a valid and applicable advance decision exists.

In cases of doubt, the court can determine whether an advance decision exists and, if so, whether it is valid and applicable to treatment. Until the court makes its decision, nothing should prevent the patient receiving life-sustaining treatment or anything believed necessary to prevent a serious deterioration in his or her condition.

Lasting powers of attorney

The Act also establishes lasting powers of attorney,which will replace enduring powers of attorney. Lasting powers of attorney will confer on the attorney authority to make decisions about an individual’s welfare, property and affairs. However, there are some restrictions, so where a lasting power of attorney includes the power to make decisions about personal welfare this does not extend to refusing, carrying out or continuing life-sustaining treatment unless the patient expressly gave authority for that.

During its passage through Parliament, the Mental Capacity Bill was the cause of impassioned debate on a number of issues.These included the possibility of euthanasia by omission, and of research conducted on people incapable of giving informed consent. Some were concerned that binding advance decisions to refuse treatment might be founded on inadequate information, and that lasting powers of attorney could result in relatives making a decision based on financial interests instead of the patient’s best interests.

The general situation on withholding and withdrawing treatment has recently been clarified in the Burke decision 1 (see ‘Making decisions on withholding or withdrawing treatmentGuidelines in Practice, September 2005).

As far as the research issue is concerned, the Act makes intrusive research unlawful unless it is part of a research project approved by, for example, an ethics committee. The research must also have the potential to benefit the patient without posing a disproportionate burden, or be intended to shed light on the causes or treatment of the patient’s medical condition or a similar condition. Under these circumstances, the risks associated with participating in the research must be viewed as negligible, and it must not be unduly invasive or significantly restrict or interfere with the patient’s freedom of action or privacy.

Advance decisions to refuse treatment are inevitably speculative to some extent. Circumstances and treatments may change radically between the time a decision is made and when it is implemented. Issues of applicability and validity are always going to require judgment, but the Act does provide a safety net to enable cases to be referred to court if there is significant doubt.

Restrictions on lasting powers of attorney should to some extent address the concern that relatives may put financial interests before those of the patient. However, legislation cannot prescribe for every eventuality, and difficult problems are likely to be referred to the courts.


Ensuring that patients who cannot make their own treatment decisions receive care that is in their best interests creates some of the most difficult decisions that healthcare professionals face.

The Mental Capacity Act provides a framework for decision-making, but individual cases will still need to be decided by considering the patient’s specific circumstances, if necessary by the courts


  1. R (on the application of Burke) v General Medical Council. [2005] EWCA Civ 1003.

Guidelines in Practice, October 2005, Volume 8(10)
© 2005 MGP Ltd
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