Circumstances that affect the decision-making process continued
Making a decision when the patient lacks capacity: overall benefit
We use the term ‘overall benefit’ to describe the ethical basis on which decisions are made about treatment and care for adult patients who lack capacity to decide for themselves. This involves weighing up the risks of harm and potential benefits for the individual patient of each of the available options, including the option of taking no action. The concept of overall benefit is consistent with the legal requirements to consider whether treatment ‘benefits’ a patient (Scotland), or is in the patient’s ‘best interests’ (England, Wales and Northern Ireland).
If you are the treating doctor, before concluding that it is your responsibility to decide which option(s) would be of overall benefit to a patient who lacks capacity, you should take reasonable steps to find out:
- whether there’s evidence of the patient’s previously expressed values and preferences that may be legally binding, such as an advance statement or decision
- whether someone else has the legal authority to make the decision on the patient’s behalf or has been appointed to represent them.
If there is no evidence of a legally binding advance refusal of treatment, and no one has legal authority to make this decision for them, then you are responsible for deciding what would be of overall benefit to your patient.
In doing this you must:
- consult with those close to the patient and other members of the healthcare team, take account of their views about what the patient would want, and aim to reach agreement with them
- consider which option aligns most closely with the patient’s needs, preferences, values and priorities
- consider which option would be the least restrictive of the patient’s future options.
If a proposed option for treatment or care will restrict a patient’s right to personal freedom, you must consider whether you need legal authorisation to proceed with it in the circumstances.
You should allow enough time, if possible, for discussions with those who have an interest in the patient’s welfare, and you should aim to reach agreement about how to proceed.
Sometimes members of the healthcare team disagree about what would be of overall benefit to the patient, or those close to the patient disagree with you and the healthcare team. It is preferable, and usually possible, to resolve disagreements about a patient’s treatment and care through local processes.
For example, by:
- involving an independent advocate or local mediation service
- consulting a more experienced colleague and/or an independent expert
- holding a case conference or seeking advice from a clinical ethics committee.
If, having taken these steps, there is still disagreement about a significant decision, you must follow any formal steps to resolve the disagreement that are required by law or set out in the relevant code of practice. You must make sure you are aware of the different people you must consult, their different decision-making roles and the weight you must attach to their views. You should consider seeking legal advice and may need to apply to an appropriate court or statutory body for review or for an independent ruling. Your patient, those close to them and anyone appointed to act for them should be informed as early as possible of any decision to start legal proceedings, so they have the opportunity to participate or be represented.
Making decisions about treatment and care when a patient's right to consent is affected by law
A patient’s right to make a healthcare decision for themselves can be affected by mental health or other5 legislation and by common law powers of the courts. Patients may be required by law to comply with assessment or treatment because they present a risk to themselves, to their health or to others. There are strict safeguards around using these legal powers to restrict or restrain individuals, and these determine what is permitted without consent. You should be aware of what treatment is, and is not, legally permissible.
For example, the Public Health (Control of Disease) Act 1984; the Public Health etc. (Scotland) Act 2008; the Public Health Act (Northern Ireland) 1967.
If you consider it necessary to use these legal powers to treat or assess a patient without consent, you must follow the procedures set out in the relevant legislation and statutory guidance and in paragraph 96 of this guidance. If you need advice or support, you should contact your defence body or professional association or seek independent legal advice.
Taking a patient-centred approach
You must take a patient-centred approach even if the law allows you to assess or treat a patient without their consent. For example, you must:
- be polite and considerate and respect your patient’s dignity and privacy
- protect your patient’s rights and freedoms and, if restriction or restraint is necessary, use it for the minimum time and in the least restrictive way possible
- support your patient to be involved in decisions about their care, let them know if they can exercise choice about any aspect of their treatment, and respect their choices if possible
- keep your patient informed about the progress of their treatment and regularly review decisions.