Skip to textbook content
Doctor’s PassportTextbook
TopicsAll topics

Loading topic navigation…

Textbook navigation
TopicsAll topics

Loading topic navigation…
Educational draft · awaiting clinical reviewUse Rapid for revision, not patient-care decisions. Check current national and local guidance and the BNF or BNFC before acting.

Capacity, best interests and advance decisions

Palliative and end-of-life care · UK scope · Sources checked 27 Aug 2026 · Clinical review pending

RapidFull
!
Urgent treatment when capacity is uncertain

Immediate care may be required before delirium resolves or an advance decision, attorney or court order can be fully checked.

Action: Support communication rapidly, determine whether the person can make this decision now and search for applicable legal authority. If delay creates serious risk and no valid refusal is known, provide the least restrictive immediately necessary treatment in the person's best interests while continuing verification; seek senior and legal advice without delay for disputed life-sustaining treatment.

Synopsis

Assess decision-specific capacity with all practicable support, identify the correct legal authority, apply valid advance refusals, and make transparent best-interests decisions that centre the person's rights, values and least restrictive clinically beneficial option.

  • Presume capacity and assess the actual decision at the time it must be made, not the person's diagnosis or global cognitive status.
  • First-line practice is supported decision making: optimise pain, oxygenation and attention, treat delirium, use hearing aids, interpreter, simple language, visual material and sufficient time.
  • In England and Wales, ask whether an impairment or disturbance affects mind or brain and whether it causes inability to understand, retain, use or weigh, or communicate the decision.
  • Short retention can be enough; communication may use speech, sign, writing, gesture or assistive technology.
  • An unwise decision is not incapacity. Test the reasoning process and grasp of consequences rather than whether the clinician agrees with the outcome.
  • If capacity is absent, first check for a valid applicable advance refusal, health-and-welfare attorney, deputy or relevant court order.
  • Best interests considers current and past wishes, values, beliefs, consultation, chance of regaining capacity and all relevant circumstances; it is not a family vote or pure medical convenience.
  • The gold-standard record connects the impairment, functional evidence, support attempted, legal authority, options, consultation, reasoning and least restrictive outcome.
  • England and Wales use the Mental Capacity Act 2005; Scotland uses the Adults with Incapacity (Scotland) Act 2000, and Northern Ireland requires attention to the 2016 Act's current commencement and local framework.

Key red flags

Age, diagnosis, detention, intoxication, communication disability or an apparently unwise choice cannot alone establish lack of capacity.

The inability to decide must result from an impairment or disturbance of mind or brain under the England-and-Wales statutory test.

A valid and applicable advance decision refusing treatment must be followed in England and Wales even when clinicians or relatives prefer treatment.

An attorney or deputy must act within granted powers; property-and-finance authority does not confer health-and-welfare authority.

Restraint, covert treatment, deprivation of liberty or serious family dispute may require additional statutory safeguards or court involvement.

Capacity law differs among UK nations, and Northern Ireland implementation is phased; current local legal and policy advice is essential.

High-stakes dispute

Conflict about validity, proxy powers, restraint or life-sustaining treatment requires senior review and may need urgent legal resolution.

Investigation priorities

01
First-line decision definitionFirst stepFirst line

State the exact choice, options, material benefits, burdens, consequences of no action and time by which a decision is required.

Management branches

Capacity assessmentSupport first, then test the decision

There is a reasonable concern that the patient may not be able to make a specific healthcare decision.

  1. Define the decision and urgency, identify potential impairment and correct reversible clinical or communication barriers as far as practicable.
  2. Explain material information accessibly and assess understanding, retention, use or weighing and communication, recording the person's actual responses.
  3. If capacity is present, respect the choice; if absent, state the causal reasoning, consider safe delay and identify the lawful next decision process.
Open full textbook →Answer 2 questions
Sources and review status5 sources · checked 27 Aug 2026 · clinical review pending+
Sources

Sources and review status

National guidance is shown before implementation-dependent detail. Apply principles in context and verify current guidance when a decision affects care. Source check completed 27 Aug 2026; clinical approval remains outstanding.

  • Mental Capacity Act 2005England and Wales law on capacity, best interests, advance decisions, LPAs and court powers.
  • NICE NG108 mental capacity recommendationsSupported decision making, assessment practice, best interests and advocacy.
  • Mental Capacity Act code of practiceOperational guidance for applying the England-and-Wales statutory framework.
  • Adults with Incapacity Scotland ActScottish legal principles and welfare decision structures.
  • Mental Capacity Northern Ireland ActNorthern Ireland legislation requiring current commencement and local-policy checking.

Editorial contact: Doctor’s Passport editorial team. Source-check date is separate from clinical approval. Report a content problem · Content changes

Authoring stateRapid draftClinical stateAwaiting reviewJurisdictionUnited Kingdom