15. If you assess that a patient lacks capacity to make a decision, you must:
16. Taking account of the considerations in paragraph 15, this is the decision-making model that applies if a patient lacks capacity:
8 Advice on children who lack capacity is in the section on neonates, children and young people.
9 Legal proxies include: a person holding a Lasting Power of Attorney (England and Wales) or Welfare Power of Attorney (Scotland), a court-appointed deputy (England and Wales) or a court-appointed guardian or intervener (Scotland). Northern Ireland currently has no provision for appointing legal proxies with power to make healthcare decisions.
10 Powers of attorney must be registered with the Offices of the Public Guardian in England and Wales and Scotland. Information is available on their websites. The role of the various legal proxies is explained in the codes of practice that support the relevant capacity laws – see the legal annex.
11 In these circumstances you will have legal authority to make decisions about treatment, under the Adults with Incapacity (Scotland) Act 2000 (subject to issuing a certificate of incapacity), or the Mental Capacity Act 2005 (England and Wales), or the common law in Northern Ireland. See the legal annex.
12 The ‘carer’ for these purposes means the person supporting the patient and representing their interests in the consultation about their health and what might be needed in terms of any investigations, treatment or care.
13 The term ‘those close to the patient’ means anyone nominated by the patient, close relatives (including parents if the patient is a child), partners and close friends, paid or unpaid carers outside the healthcare team and independent advocates. It may include attorneys for property and financial affairs and other legal proxies, in some circumstances.
14 Who it is appropriate and practical to consult will depend on, for example, a patient’s previous request; what reasonable steps can be taken to consult within the time available before a decision must be made; and any duty to consult or prioritise specific people set out in relevant capacity laws or codes.
15 No one ‘willing or able’ generally means where there is no one close to the patient to consult or those available are unable or feel unable to participate in the decision making. The MCA Code of Practice gives more information.
16 Serious medical treatment is defined in the MCA Code of Practice, where the role of the IMCA is also set out.