Educational draft · awaiting clinical reviewThe full textbook explains uncertainty but does not replace live national or local guidance, specialist advice, or current prescribing information.
Capacity, advance decisions and lasting powers of attorney
Psychiatry · UK scope · Sources checked 27 Aug 2026 · Clinical review pending
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Urgency does not erase legal safeguards
When delay threatens life and the person cannot decide, provide immediately necessary, proportionate treatment in their best interests while checking for a valid and applicable advance refusal, relevant registered attorney authority or court order. Uncertainty about an advance decision requires urgent senior legal and clinical review.
Action: Stabilise immediate threats, support communication, define the exact decision, document why delay is unsafe, search available records and contacts for decision-making instruments, and involve the responsible senior clinician. Where genuine doubt remains about an advance refusal, document the reasons and give immediately necessary best-interests treatment while urgent clarification is pursued; if a court decision is being sought, MCA section 26(5) expressly permits life-sustaining treatment or treatment preventing serious deterioration pending that decision.
Purpose and principles
Support each person to decide wherever possible, assess capacity for the specific decision and time, apply best-interests safeguards when capacity is absent, and distinguish valid advance refusals from attorney authority and non-binding preferences.
Capacity law protects autonomy and provides a process for decisions when autonomy cannot currently be exercised. In England and Wales, the Mental Capacity Act 2005 begins with five principles: presume capacity; take all practicable steps to help the person decide; do not treat an unwise choice as incapacity; act in best interests when deciding for a person who lacks capacity; and consider whether the purpose can be achieved less restrictively. Apply the legal framework for the jurisdiction rather than transferring England-and-Wales terminology uncritically across the UK.
Define the decision precisely. Capacity to consent to antibiotics today is different from capacity to manage a complex investment, choose long-term accommodation or make an LPA. It may vary with delirium, fatigue, psychosis, pain, medication and time of day. Do not
Practice
Two practice questions
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Question 1 of 2
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PsychiatryOriginal SBA
Unwise treatment refusal
A person with mild dementia refuses a recommended operation after accurately explaining the procedure, alternatives, major risks and likely consequences according to a long-held value. What is the best legal interpretation?
Sources and review status9 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 2005Primary England-and-Wales legislation on principles, capacity, best interests, advance decisions, LPAs and legal safeguards.
NICE NG108 capacity recommendationsSupported decision-making, assessment, recording, best interests, advocacy, advance planning and least-restrictive practice.
MCA 2005 section 28Primary legislation preserving Mental Health Act compulsory-treatment powers despite an advance decision.
ask whether the person has capacity in general. Record the material decision, when it must be made, available options and why there is reason to doubt capacity despite the starting presumption.
Support comes before a finding of incapacity. Use the person's preferred language, interpreter, pictures, objects, sign or communication aid; correct hearing and vision barriers; reduce noise and distress; divide information into manageable parts; and involve a trusted person if the individual wants this and coercion is not suspected. Explain the salient information, including likely consequences of each option and of doing nothing. If delay is safe and delirium, pain, sedation or panic may improve, assess at a better time.
The statutory test has diagnostic and functional elements with a causal link. There must be an impairment of, or disturbance in, the functioning of mind or brain. Because of that impairment, the person must be unable to understand information relevant to the decision, retain it long enough to decide, use or weigh it as part of the process, or communicate the choice by any means. Retention only for a short period does not automatically mean inability. Disagreement with clinicians, eccentric values or an unwise outcome is not a failed test.
Assessment is a conversation, not a memory examination. Ask the person to explain the decision in their own way, compare options and describe consequences important to them. Explore whether a delusion, executive impairment or overwhelming distress prevents use or weighing rather than merely being present. A cognitive tool may inform but cannot determine capacity. Record practicable support, salient information, the person's responses, which element is or is not met, the causal link, conclusion and review timing.
When relevant capacity is absent, identify the decision-maker. For clinical treatment it is usually the responsible health professional unless an attorney or deputy holds authority over that decision, a valid advance refusal applies or a court has decided. A court-appointed deputy cannot refuse consent to life-sustaining treatment. Family and next of kin do not acquire automatic legal decision-making power. They often provide essential evidence about wishes and values, but consultation is not delegation unless formal authority exists.
Best interests is not what professionals would choose for themselves. Encourage the person's participation and consider past and present wishes, feelings, beliefs, values, written statements, relationships and all relevant circumstances. Consult attorneys, deputies, family, friends, carers or an Independent Mental Capacity Advocate as required. Avoid assumptions from age, condition or behaviour. Compare benefits, burdens, restrictions and alternatives, consider whether the purpose can be achieved as effectively less restrictively, and then record the overall decision with particular weight given to the person's perspective.
Deprivation of liberty is now assessed under the multifactorial approach required by [2026] UKSC 16, not the former continuous-supervision and not-free-to-leave acid test. Consider the restrictions' type, duration, effects, implementation, purpose and relative normality, together with objection and the person's wishes and feelings; no single factor is decisive. Someone who lacks MCA capacity for care and residence may still be capable of valid consent for Article 5 purposes if conscious of the environment, possessing basic understanding and able to express acceptance, but serious doubt prevents such a conclusion. Use DoLS in hospitals or care homes and the appropriate court route elsewhere when the arrangements may deprive liberty or the answer remains doubtful.
Advance statements express preferences, values, care wishes or desired place of care. They are not legally binding in the same way as an advance decision to refuse treatment, but must be considered in best-interests deliberation. They cannot compel clinically inappropriate treatment. Make them accessible, specific and reviewed. A treatment-escalation or emergency-care plan can record clinical recommendations and preferences, but its legal effect must not be confused with a capacitous current refusal or valid ADRT.
An advance decision to refuse treatment allows an adult aged eighteen or over with capacity to refuse specified treatment in specified future circumstances when they lack capacity. It cannot demand treatment. Presume the person had capacity when making it unless reasonable grounds create doubt, then investigate and document those concerns. Check identity, age, voluntariness, withdrawal, anything clearly inconsistent with the refusal remaining the person's fixed decision, and whether the treatment and circumstances match. A later LPA authorised over the same treatment invalidates an earlier ADRT; a later valid and applicable ADRT prevails over an earlier LPA for that treatment. Refusal of life-sustaining treatment must be written, signed and witnessed and state that it applies even if life is at risk.
A valid and applicable ADRT ordinarily binds treatment decisions, but MCA section 28 preserves compulsory-treatment powers under Part 4 of the Mental Health Act 1983. Treatment for mental disorder may therefore sometimes be given despite an ADRT, subject to the current Mental Health Act framework and specific safeguards for ECT and Part 4A patients; treatment for unrelated physical disorder remains governed separately. Seek specialist legal advice whenever this interface may apply.
There are two LPAs in England and Wales: health and welfare, and property and financial affairs. The donor creates one while having capacity and it must be registered before use. A health-and-welfare attorney acts only when the donor lacks capacity for that specific decision, within the instrument and in best interests. Authority to consent to or refuse life-sustaining treatment must have been expressly granted. A property-and-financial-affairs attorney may sometimes act while the donor has capacity if the document permits, but cannot thereby make health decisions.
Disagreement needs a proportionate route. Recheck capacity, the instrument and decision scope; seek the person's views; convene a best-interests meeting; use advocacy, safeguarding and mediation; and obtain legal advice. Serious unresolved disputes, questions about ADRT validity, disputed life-sustaining treatment or concerns that an attorney is not acting lawfully may require the Court of Protection. Genuine uncertainty permits immediately necessary best-interests treatment with reasons recorded; MCA section 26(5) specifically protects life-sustaining treatment or prevention of serious deterioration while a court decision is being sought.
Key points
The Mental Capacity Act 2005 applies generally from age sixteen in England and Wales, while an ADRT or LPA requires adulthood at eighteen; Scotland and Northern Ireland have different legal frameworks.
Presume capacity, take all practicable steps to support decision-making and do not equate an unwise decision with incapacity.
Capacity is specific to the exact decision and time; a diagnosis or poor screening score does not confer global incapacity.
The person lacks capacity only when an impairment or disturbance of mind or brain causes inability to understand, retain, use or weigh relevant information, or communicate the decision.
Give salient information accessibly, including the nature, likely consequences, alternatives and consequences of deciding or not deciding.
If a safe delay could restore capacity, treat delirium, pain or distress and assess at the person's best time with needed aids and support.
A best-interests decision starts only after relevant incapacity is established and centres the person's wishes, feelings, beliefs, values and participation.
Identify the lawful decision-maker, consult appropriate people, consider whether the purpose can be achieved as effectively in a less restrictive way, and record the overall best-interests decision.
Indications, selection and cautions
Decision-specific capacity
Ability is assessed for one material choice at one time, not awarded or removed globally because of a diagnostic label.
Supported decision-making
Accessible information, communication aids, trusted support, optimal timing and distress reduction may enable an autonomous decision.
Functional inability
The person cannot understand, retain, use or weigh salient information, or communicate a choice by any available means.
Unwise but capacitous choice
A decision others consider risky can remain valid when the person processes the relevant information according to their own values.
Valid advance refusal
A specific voluntary refusal made with capacity applies later when its treatment and circumstances match and no invalidating event occurred.
Attorney authority
A registered LPA grants defined powers; health-and-welfare authority activates only when relevant capacity is absent and remains bounded by instructions.
Red flags requiring action
Delirium, intoxication, hypoxia, hypoglycaemia, severe pain or communication failure can cause temporary apparent inability and needs immediate treatment and support.
Refusal of life-sustaining treatment requires urgent verification of current capacity or a valid, applicable advance decision rather than assumption from diagnosis.
Assessment before treatment
01Decision and timing definitionFirst step
Why
Specify the exact choice, salient information, urgency, alternatives and consequences before assessment.
Interpretation and limitations
A conclusion cannot be transferred automatically to another decision or a later time.
02Practicable support assessment
Why
Identify language, hearing, vision, communication, environment, trusted-person and optimal-timing adjustments.
Interpretation and limitations
Incapacity cannot be concluded until all practicable steps in the circumstances have been taken without success; urgency affects what is practicable, not the statutory test.
03Diagnostic and causal element
Why
Establish an impairment or disturbance of mind or brain and whether it causes the decision-making difficulty.
Interpretation and limitations
Diagnosis or distress alone is insufficient; coercion may impair voluntariness without satisfying the capacity test.
04Functional capacity interview
Why
Test understanding, retention, use or weighing of salient facts and communication through any effective method.
Interpretation and limitations
Document the person's reasoning and which statutory element fails, distinguishing disagreement or unwise values from inability.
05
Treatment approach
01Capacity questionSupport, assess and recordFirst stepThere is a concrete reason to doubt that a person can make a specific decision at the required time.+
1Define the exact decision and salient information and take practicable steps to address communication, environment, distress and timing.
2Assess whether an impairment of mind or brain causes inability to understand, retain, use or weigh, or communicate the decision.
3Record evidence, causal reasoning, conclusion, emotional support, review timing and how the person can challenge or revisit the outcome.
02Absent capacityDecide through lawful best interestsA proportionate recorded assessment concludes on the balance of probabilities that the person lacks capacity for the current decision.+
1Identify the lawful decision-maker and check for a valid advance refusal, registered attorney, deputy, court order or IMCA requirement, remembering that a deputy cannot refuse life-sustaining treatment.
Complications, monitoring and follow-up
Review capacity when the decision, salient information, mental state, communication support or urgency changes rather than treating the conclusion as permanent.
Record what practical support succeeded so future clinicians can reproduce the person's best communication and decision-making conditions.
Keep ADRTs, LPAs, advance statements, court orders and attorney contact details visible, verified and accessible across care settings.
Revisit best-interests decisions when capacity returns, new wishes emerge, restrictions increase or the anticipated benefits and burdens change.
Monitor attorney or deputy actions for scope, best interests, conflicts and safeguarding concerns rather than assuming registration prevents misuse.
Audit restrictive care multifactorially for type, duration, effects, implementation, objection, wishes and feelings, necessity, proportionality, legal authority and review dates.
Special situations
Capacity follows the decision
A person may lack capacity for complex finances yet decide where to eat, who to see or whether to accept a simple treatment.
Values shape weighing
Giving different importance to survival, independence, pain or religious belief can be rational use and weighing even when clinicians disagree.
Coercion is not synonymous
Pressure may invalidate voluntariness and trigger safeguarding while the statutory capacity elements still require separate assessment.
Documents have different force
An advance statement informs best interests, an ADRT can bind treatment refusal, and an LPA grants a defined decision-making power.
Family informs but may not decide
Relatives often know the person's wishes best, yet next-of-kin status alone creates no general authority under the Act.
Common pitfalls
01
Writing lacks capacity without naming the exact decision, time, salient information, support tried and statutory element that failed.
02
Using dementia, psychosis, age, disability, a cognitive score or an unwise outcome as automatic proof of incapacity.
03
Providing information in an inaccessible format and then treating communication failure as inability to decide.
04
Asking relatives for consent because they are next of kin without verifying attorney, deputy or other legal authority.
05
Moving directly to best interests before a supported and proportionate capacity assessment has established relevant incapacity.
06
Treating the family's preferred outcome as best interests while failing to establish the person's own wishes, beliefs and values.
07
Confusing an advance statement or emergency-care recommendation with a valid and applicable ADRT.
08
Accepting an LPA photograph or assertion without checking registration, scope, activation, instructions and life-sustaining authority.
09
Using the former continuous-supervision and not-free-to-leave acid test as determinative after the 2026 Supreme Court judgment instead of a multifactorial deprivation-of-liberty assessment.
A valid and applicable advance decision refuses specified future treatment; refusing life-sustaining treatment requires writing, signature, witness and an explicit life-risk statement.
A health-and-welfare LPA acts only when the donor lacks capacity for the decision and may decide life-sustaining treatment only if the donor expressly granted that authority.
After [2026] UKSC 16, deprivation of liberty requires a multifactorial assessment of the concrete restrictions and the person's objection, wishes and feelings; the former acid test is no longer determinative.
A relative claiming power without a registered document, outside its scope or while the donor retains relevant capacity cannot decide merely through next-of-kin status.
Coercion, fear, dependency, financial pressure or rehearsed answers may undermine voluntariness without necessarily proving incapacity and needs safeguarding assessment.
Serious disagreement about best interests, attorney conduct or an advance decision may require safeguarding, mediation, legal advice or Court of Protection involvement.
Global cognitive scores, age, diagnosis, appearance, disability or an apparently unwise choice cannot establish lack of capacity.
Since [2026] UKSC 16, continuous supervision and inability to leave remain relevant but are not determinative: assess type, duration, effects and implementation of restrictions, objection, wishes and feelings multifactorially, and refer doubtful cases through current DoLS or court processes.
Instrument verification
Why
Locate and examine any ADRT, registered LPA, deputy order, advance statement or court decision.
Interpretation and limitations
Confirm identity, scope, activation, validity, applicability, chronology, any life-sustaining authority and the ADRT or Mental Health Act interface before relying on it.
06Best-interests evidence
Why
Gather current and past wishes, feelings, beliefs, values, preferences, benefits, burdens and less-restrictive alternatives.
Interpretation and limitations
Consultation informs the responsible decision-maker; a relative's preference does not replace the person's perspective or legal authority.
07Restriction and wishes assessment
Why
Describe the type, duration, effects, implementation and purpose of restrictions and establish objection, wishes, feelings and possible valid consent.
Interpretation and limitations
No former acid-test factor is determinative after [2026] UKSC 16; refer doubtful hospital or care-home cases through DoLS and other settings through the appropriate court route.
2Involve the person and consider wishes, feelings, beliefs, values and all relevant circumstances with appropriate consultation.
3Consider whether the purpose can be achieved as effectively less restrictively, then record the overall decision, reasons, dissent, review date and dispute route.
03Advance planning instrumentVerify authority before useAn ADRT, LPA, advance statement or claimed proxy decision becomes relevant to care.+
1Obtain the complete document or verified digital record and confirm identity, registration, dates, scope, instructions and revocation status.
2For an ADRT, match the precise refused treatment and circumstances and apply the additional formalities for life-sustaining treatment.
3For an LPA, confirm relevant incapacity and attorney authority; seek urgent senior legal review when validity, applicability or conflict is unresolved.
10
Applying an ADRT to compulsory treatment for mental disorder without checking the Mental Health Act Part 4 and Part 4A interface and ECT safeguards.