The Mental Capacity Act 2005 provides a statutory definition of mental capacity. When mental capacity is lacking, this makes provisions for advanced decisions (living wills) and the power to appoint a lasting power of attorney (LPA) under which decisions can be made. These cover property, finance and personal welfare.
It must first be established that the patient lacks the mental capacity to make decisions on their own behalf. If the patient
is unconscious, others must decide whether treatment is to be continued or withdrawn.
A check must be made to see if the patient had made a decision in advance to refuse treatment when capacity was lacking, or to appoint a person under an LPA to make decisions on their behalf. If either of these exist, are valid and apply to the situation, they must be followed.
In their absence, actions must be taken in the patient’s best interests.
The criteria for determining best interests include: the person’s past and present wishes and feelings; the beliefs and values that would be likely to influence their decision if they had capacity; and other factors they would be likely to consider if they were able to do so.
Such information can usually only be obtained by asking friends and family, so the act requires consultation with, among others, anyone named by the patient or anyone engaged in caring for them or interested in their welfare.
Concerning life-sustaining treatment, the decision-maker must not, in considering whether treatment is in the patient’s best interests, be motivated by a desire to bring about their death.
Decisions on the continuation or withdrawal of treatment must, in the absence of an LPA or advance decision, be made in the patient’s best interests. Relatives should be consulted. In the event of a dispute over what the best interests are, an application could be made to the Court of Protection to decide this.
Bridgit Dimond, MA, LLB, DSA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd