Adults who lack capacity - making recordings for secondary purposes

1. 31. Where a patient lacks capacity to make a decision, you must act in accordance with the relevant legislation.¹⁶  This means that in making any decision about or on behalf of the patient, including making recordings of them for secondary purposes (except in the circumstances in paragraph 33) you should be satisfied that making a recording:

• is necessary, and benefits the patient or is in their best interests; and
• that the purpose cannot be achieved in a way that is less restrictive of the patient's rights and choices.

1. 32. Where another person has legal authority to decide on the patient’s behalf, they must apply the same principles before giving or refusing consent.
2. 33. The law provides some exemptions from these principles to enable adults who lack capacity to be involved in research; and recordings may form part of such research. For further advice about involving adults who lack capacity in research see our guidance Consent to research.¹⁷