What Happens After a Patient Is Found to Lack Capacity?

A capacity assessment is not the end of the process.

If a patient cannot make the particular decision, the next question is not simply, “What do staff want to do?”

The team still has to involve the patient, check for earlier decisions or authorised representatives, use the correct law and choose an option that can be justified.

Step One: Confirm What the Person Cannot Decide

The conclusion must relate to a specific decision at a specific time.

A patient may lack capacity to consent to major surgery but still decide who they want present, what information they want repeated or whether they agree to ordinary personal care.

A capacity finding should not become a blanket label attached to every choice.

Step Two: Ask Whether the Decision Can Wait

Capacity can improve.

If delirium, sedation, severe pain, infection or another temporary problem is affecting the person, and the decision can safely wait, the team should consider returning to it when the person is more able to decide.

Urgent treatment cannot always be delayed. The clinical risk, likely time to recovery and consequences of waiting all matter.

Step Three: Check for the Patient’s Earlier Decisions

The team should check whether the person has already made a relevant legal arrangement or recorded their wishes.

This may include:

• a valid and applicable Advance Decision to Refuse Treatment in England and Wales
• a health and welfare Lasting Power of Attorney in England and Wales
• a welfare power of attorney or welfare guardian in Scotland
• a relevant court order
• a Scottish mental health advance statement
• an advance care plan or other record of wishes and values

These documents do not all have the same legal effect. The original or an authenticated copy may need to be checked, including the exact powers and circumstances covered.

Step Four: Keep the Person Involved

Lack of capacity does not make the patient invisible.

They should be helped to participate as far as possible. Their current reactions, earlier wishes, feelings, beliefs and values may all be relevant.

Even when someone cannot make the final treatment decision, they may be able to express what frightens them, which options feel more acceptable or who they want beside them.

Who Can Make the Decision?

Finding that a patient lacks capacity does not automatically hand the decision to their family. The team must identify who holds legal authority for this particular decision and check the relevant document, court order or statutory framework.

Does Next of Kin Decide?

No. “Next of kin” does not automatically give a relative legal authority to consent to or refuse healthcare for another adult.

Relatives and carers can still be extremely important. They may explain the person’s wishes, values, beliefs, usual communication and previous conversations about treatment.

Consultation is not the same as handing over the decision. Legal authority must come from the correct document, court order or statutory framework.

England and Wales

Under the Mental Capacity Act 2005, the person responsible for the proposed act or decision must make sure it is in the person’s best interests when the person lacks capacity and no other authorised decision-maker controls that decision.

For treatment, this will usually be the healthcare professional responsible for that treatment. Everyday nursing decisions may sit with the registered professional providing or coordinating that care. Significant or disputed decisions may require senior multidisciplinary review or the Court of Protection.

The decision-maker must consider the statutory best-interests checklist. This includes the person’s past and present wishes, feelings, beliefs and values, whether capacity may return, how the person can participate and the views of relevant others.

Health and Welfare Lasting Power of Attorney

A person can appoint an attorney under a registered health and welfare Lasting Power of Attorney.

The attorney can only act when the person lacks capacity for the decision, and only within the powers granted by the document. Authority concerning life-sustaining treatment must be expressly included.

Staff should not rely on a relative saying, “I have power of attorney.” The document needs to be checked. A property and financial affairs attorney does not automatically have power over healthcare.

Court-Appointed Deputy

The Court of Protection may appoint a personal welfare deputy, but broad welfare appointments are uncommon. The court often prefers to make a decision about the specific issue when serious welfare disputes arise.

Any deputy’s order must be checked because their powers are limited to what the court has authorised.

Advance Decision to Refuse Treatment

A valid and applicable Advance Decision to Refuse Treatment is the patient’s own earlier refusal, not a decision made by a substitute.

If it covers the proposed treatment and circumstances, it must be followed. Extra legal requirements apply when it refuses life-sustaining treatment.

Bleepbook has a separate article explaining Advance Decisions to Refuse Treatment.

Scotland

Scotland uses the Adults with Incapacity (Scotland) Act 2000, not the Mental Capacity Act best-interests framework.

For medical treatment, an authorised healthcare practitioner may provide treatment under Part 5 when the required assessment and certificate are in place, subject to the limits and safeguards in the Act.

The intervention must benefit the adult, be the least restrictive reasonable option, take account of the adult’s wishes and include appropriate consultation.

Welfare Attorney or Guardian

A welfare attorney or court-appointed welfare guardian may hold powers relating to healthcare, but the document or court order must be checked carefully.

Some powers may cover care arrangements but not every medical treatment. Certain treatments have separate legal safeguards. If there is disagreement between the practitioner and a proxy with relevant powers, the Act provides routes for further opinion and resolution.

Being a spouse, child or named contact is not enough on its own.

Northern Ireland

The Mental Capacity Act (Northern Ireland) 2016 is being implemented in phases and has not yet been fully commenced.

Phase One mainly introduced provisions for deprivation of liberty, research, and money and valuables. Routine treatment decisions cannot safely be explained by pretending the entire 2016 framework is already in force.

Students should follow the current Health and Social Care trust process, involve the registered professional and check which legal framework applies to the decision.

What If the Family Disagrees?

Disagreement does not automatically mean that the family is obstructive or the clinical team is correct.

People may have different information about the patient, different understandings of the options or different views about risk and quality of life.

The team should clarify the decision, explain the legal process, listen to the reasons for disagreement and try to resolve it before acting where possible.

Complex disputes may need a second opinion, mediation, an ethics discussion, senior legal advice or court involvement. Emergencies require immediate senior clinical judgement using the applicable law.

What Happens to Consent?

A person who lacks capacity cannot provide valid consent to that decision at that time.

The team does not solve this by asking a relative to sign a form unless that person has the relevant legal authority.

Instead, care or treatment must have a lawful basis under the framework that applies. A signature is not a replacement for lawful reasoning.

Reassessment Still Matters

A person who lacked capacity yesterday may have capacity today.

The team should review capacity when the decision changes, the person’s condition changes or the earlier impairment improves.

Do not rely indefinitely on an old assessment simply because it is already in the notes.

What Should a Student Nurse Do?

You can help by:

• continuing to speak directly to the patient
• using communication support and noticing changes
• reporting the person’s wishes and responses
• checking whether legal documents have been identified
• avoiding claims that next of kin automatically consents
• documenting what you observed and who you informed
• asking your practice supervisor which local process applies

You are not expected to lead a complex legal decision alone. You are expected to recognise when the process needs registered-professional oversight.

The Bleepbook Takeaway

When a patient cannot make the decision, the decision does not become ownerless.

The team must use the correct legal framework, preserve the patient’s involvement, check earlier wishes and authority, choose the least restrictive lawful option and keep the situation under review.

References

Department of Health Northern Ireland. Mental Capacity Act background.

GOV.UK. Mental Capacity Act Code of Practice.

National Institute for Health and Care Excellence. Decision-making and mental capacity (NG108).

Scottish Government. Adults with Incapacity forms and supporting material.

Scottish Government. Adults with Incapacity principles.