Circumstances that affect the decision-making process continued

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 person with lead responsibility for the patient’s treatment and care, 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:

1. 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
2. whether someone else has the legal authority to make the decision on the patient’s behalf or has been appointed to represent them. Or in Scotland if someone is applying to be granted such authority (see s49 Adults with Incapacity (Scotland) Act 2000).

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, if you are the person with lead responsibility for the patient’s treatment and care, then you are responsible for deciding what would be of overall benefit to your patient.⁵ 

In doing this you must:

1. 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
2. consider which option aligns most closely with the patient’s needs, preferences, values and priorities
3. 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.

A patient’s right to make a healthcare decision for themselves can be affected by mental health or other⁶  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.

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.