Synopsis
Make transparent, lawful decisions when a person cannot decide, first respecting valid prior authority, then centring wishes, values, clinical options, consultation and the least restrictive effective course under the correct UK jurisdiction.
- Confirm that capacity is absent for the specific decision after practicable support and consider whether the choice can wait for recovery.
- Check first for a valid applicable advance refusal, health-and-welfare attorney, deputy, guardian or court order and verify the exact scope of authority.
- In England and Wales, encourage participation and consider all relevant circumstances, present and past wishes, values, beliefs and the views of appropriate people.
- Compare each clinically available option, including no treatment or delay, for benefits, burdens, reversibility, rights, relationships and likely effect on what matters to the person.
- Family and friends are evidence about the person, not automatic substitute decision makers; record agreement, disagreement and possible conflicts of interest.
- Choose the less restrictive effective option and explain why a more restrictive choice is necessary if selected.
- Following the 2026 UK Supreme Court decision, assess Article 5 consent to confinement separately from domestic decision-making capacity, including current wishes, feelings and basic understanding; do not cancel safeguards when consent is absent or unclear.
- Arrange an Independent Mental Capacity Advocate in England and Wales when statutory criteria apply, including specified serious decisions for an unbefriended person.
- Use court or specialist legal review for unresolved serious conflict, uncertain advance refusal, sterilisation, organ donation, prolonged restraint or other exceptional questions.
- Set a review point because prognosis, options, capacity, wishes and the proportionality of restrictions can change.
Key red flags
A valid and applicable advance decision refusing treatment in England and Wales is binding and cannot be replaced by a clinician's or family's view of best interests.
Property-and-finance authority, ordinary next-of-kin status or family seniority does not create health-and-welfare decision power.
Best interests is not a vote, clinical convenience, bed-management decision or assumption based on age, disability, diagnosis or perceived quality of life.
Restraint requires necessity and proportionality under the applicable framework; domestic incapacity must not now be treated as automatic absence of valid Article 5 consent to confinement, and unresolved or negative consent still requires the applicable authorisation and legal review.
Scotland and Northern Ireland use different statutory structures, so England-and-Wales terminology and documents cannot be applied automatically.
Investigation priorities
Verify inability for this decision and whether safe delay could restore personal decision making.
Management branches
The patient cannot make the specified decision and safe delay will not restore capacity in time.
- Check binding refusals, proxy or court authority and involve the person using the best available communication and support.
- Gather wishes, values, professional evidence and appropriate consultation, then compare all clinically available options and no action.
- Select the least restrictive effective course, explain reasoning and dissent and assign a review point and responsible decision maker.