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Consent guidance: Legal framework

62. Making decisions about treatment and care for patients who lack capacity is governed in England and Wales by the Mental Capacity Act 2005, and in Scotland by the Adults with Incapacity (Scotland) Act 2000. The legislation sets out the criteria and procedures to be followed in making decisions when patients lack capacity to make these decisions for themselves. It also grants legal authority to certain people to make decisions on behalf of patients who lack capacity.13 In Northern Ireland, there is currently no relevant primary legislation; and decision-making for patients without capacity is governed by the common law, which requires that decisions must be made in a patient’s best interests.14 There is more information about legislation and case law in the legal annex to this guidance.15

63. The guidance that follows is consistent with the law across the UK. It is important that you keep up to date with, and comply with, the laws and codes of practice that apply where you work. If you are unsure about how the law applies in a particular situation, you should consult your defence body or professional association, or seek independent legal advice.