Decision-making models

If a patient has capacity⁷  to make a decision for themselves, this is the decision-making model that applies:

1. You and the patient make an assessment of the patient’s condition, taking into account their medical history, views, experience and knowledge. 
2. You uses specialist knowledge and experience and clinical judgement, and the patient’s views and understanding of their condition, to identify which options for investigating, treating or managing the patient’s condition (including the option to take no action) are clinically appropriate. You explain the options to the patient, setting out the potential benefits, burdens and risks of each option. You may recommend a particular option which you believe to be best for the patient, but you must not put pressure on the patient to accept your advice. 
3. The patient weighs up the potential benefits, burdens and risks of the various options as well as any non-clinical issues that are relevant to them. The patient decides between the options. They also have the right to accept or refuse an option for a reason that may seem irrational to you or for no reason at all.
4. If the patient asks for treatment or care that you don’t think would be clinically appropriate, you should explore their reasons for requesting it, their understanding of what it would involve, and their expectations about the likely outcome. This discussion will help you take account of factors that are significant to the patient and assess whether providing the treatment or care could serve the patient’s needs. If after discussion you still consider that the treatment or care would not serve the patient’s needs, then should not provide it. But, you should explain your reasons to the patient and explore other options that might be available, including their right to seek a second opinion. 

If you assess that a patient lacks capacity⁸  to make a decision, you must:

a. be clear what specific decisions about treatment and care need to be made

b. check who has the responsibility to decide which option would be of overall benefit to the patient and make sure that reasonable steps are taken 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 refusal of treatment
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). You should bear in mind that the powers held by a legal proxy⁹ may not cover all types of treatment, so you should check the scope of their decision-making authority¹⁰  

c. If there is no evidence of a legally binding advance refusal of treatment, and no one has legal authority to make this decision for the patient, then, *or in Scotland if someone is applying to be granted such authority (see s49 Adults with Incapacity (Scotland) Act 2000) then, if you have lead responsibility for the patient’s treatment and care, you are responsible for deciding what would be of overall benefit to them¹¹. 

In doing this, if 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

Taking account of the considerations in paragraph 15, this is the decision-making model that applies if a patient lacks capacity and you have lead responsibility for the patient’s treatment and care:

1. You, with the patient (if they are able to contribute) and those who care for the patient¹² , makes an assessment of the patient’s condition taking into account the patient’s medical history and the patient and carer’s (or carers’) knowledge and experience of the condition. 
2. You uses specialist knowledge, experience and clinical judgement, together with any evidence about the patient’s views (including any advance statement and/ or advance care plan), to identify which investigations, treatments or options for managing the patient’s condition (including the option to take no action) are in the patient’s clinical interests and to decide which of those options is likely to result in their overall benefit.
3. If the patient has made an advance refusal of treatment, you must make a judgement about its validity and its applicability to the current circumstances. If  you conclude that the advance refusal is legally binding, it must be followed in relation to that treatment. Otherwise it should be taken into account as information about the patient’s previous wishes. (See paragraphs 67 - 74 on assessing the legal status of advance refusals.)
4. If an attorney or other legal proxy has been appointed to make healthcare decisions for the patient, you explain the relevant options to the legal proxy (as you would do for a patient with capacity), setting out the benefits, burdens and risks of each option. You may recommend a particular option which you believe would provide overall benefit for the patient. The legal proxy weighs up these considerations and any non-clinical issues that are relevant to the patient’s treatment and care, and, considering which option would be least restrictive of the patient’s future choices, makes the decision about which option will be of overall benefit.  You should offer support to the legal proxy in making the decision, but must not pressurise them to accept a particular recommendation. 
5. As well as advising the legal proxy, you must involve members of the healthcare team and those close to the patient¹³  as far as it is practical and appropriate to do so¹⁴ , as they may be able to contribute information about the patient that helps the proxy to reach a decision. If the legal proxy does not have the power to make a particular decision, you must take account of the proxy’s views (as someone close to the patient) in the process of reaching a decision.
6. In circumstances in which there is no legal proxy with authority to make a particular decision for the patient, and you are responsible for making the decision, you must consult with members of the healthcare team and those close to the patient (as far as it is practical and appropriate to do so) before reaching a decision. When consulting, you will explain the issues; seek information about the patient’s circumstances; and seek views about the patient’s wishes, preferences, feelings, beliefs and values. You may also explore which options those consulted might see as providing overall benefit for the patient, but must not give them the impression they are being asked to make the decision. You must take the views of those consulted into account in considering which option would be least restrictive of the patient’s future choices and in making the final decision about which option is of overall benefit to the patient. 
7. In England and Wales, if there is no legal proxy, close relative or other person who is willing or able¹⁵  to support or represent the patient and the decision involves serious medical treatment¹⁶ , you must approach your employing or contracting organisation about appointing an Independent Mental Capacity Advocate (IMCA), as required by the Mental Capacity Act 2005 (MCA). The IMCA will have authority to make enquiries about the patient and contribute to the decision by representing the patient’s interests, but cannot make a decision on behalf of the patient. 
8. If a disagreement arises about what would be of overall benefit, you must attempt to resolve the issues following the approach set out in paragraphs 47 - 48.
9. If a legal proxy or other person involved in the decision making asks for treatment or care that you don't think would be of overall benefit to the patient, you should explore their reasons for requesting it, their understanding of what it would involve, and their expectations about the likely outcome. This discussion will help you take account of factors that are significant to the patient and assess whether providing the treatment or care could serve the patient’s needs. If after discussion you still consider that the treatment or care would not serve the patient’s needs, then you should not provide it. But, you should explain your reasons to the proxy or other person involved in the decision making and explore other options that might be available, including their right to seek a second opinion, applying to the appropriate statutory body for a review (Scotland), and applying to the appropriate court for an independent ruling. For further guidance on acting on advance requests for treatment see paragraphs 63 - 66.