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Mental Capacity Act 2005
Code of Practice
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Department for Constitutional Affairs
Mental Capacity Act 2005
Code of Practice
Issued by the Lord Chancellor on 23 April 2007 in accordance with 
sections 42 and 43 of the Act
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Foreword by Lord Falconer
The Mental Capacity Act 2005 is a vitally important 
piece of legislation, and one that will make a real 
difference to the lives of people who may lack mental 
capacity. It will empower people to make decisions 
for themselves wherever possible, and protect 
people who lack capacity by providing a fl exible 
framework that places individuals at the very heart 
of the decision-making process. It will ensure that 
they participate as much as possible in any decisions 
made on their behalf, and that these are made in their 
best interests. It also allows people to plan ahead for 
Foreword by Lord 
a time in the future when they might lack the capacity, 
Falconer, Secretary of 
for any number of reasons, to make decisions for 
State for Constitutional 
themselves. 
Affairs and Lord 
The Act covers a wide range of decisions and 
Chancellor
circumstances, but legislation alone is not the whole 
story. We have always recognised that the Act needs to be supported by 
practical guidance, and the Code of Practice is a key part of this. It explains 
how the Act will operate on a day-to-day basis and offers examples of best 
practice to carers and practitioners. 
Many individuals and organisations have read and commented upon earlier 
drafts of the Code of Practice and I am very grateful to all those who 
contributed to this process. This Code of Practice is a better document as a 
result of this input. 
A number of people will be under a formal duty to have regard to the Code: 
professionals and paid carers for example, or people acting as attorneys or as 
deputies appointed by the Court of Protection. But for many people, the most 
important relationships will be with the wide range of less formal carers, the 
close family and friends who know the person best, some of whom will have 
been caring for them for many years. The Code is also here to provide help 
and guidance for them. It will be crucial to the Code’s success that all those 
relying upon it have a document that is clear and that they can understand. 
I have been particularly keen that we do all we can to achieve this.
The Code of Practice will be important in shaping the way the Mental 
Capacity Act 2005 is put into practice and I strongly encourage you to take 
the time to read and digest it.
Lord Falconer of Thoroton

Introduction
The Mental Capacity Act 2005, covering England and Wales, provides a 
statutory framework for people who lack capacity to make decisions for 
themselves, or who have capacity and want to make preparations for a time 
when they may lack capacity in the future. It sets out who can take decisions, 
in which situations, and how they should go about this. The Act received 
Royal Assent on 7 April 2005 and will come into force during 2007.
The legal framework provided by the Mental Capacity Act 2005 is supported 
by this Code of Practice (the Code), which provides guidance and information 
about how the Act works in practice. Section 42 of the Act requires the Lord 
Chancellor to produce a Code of Practice for the guidance of a range of 
people with different duties and functions under the Act. Before the Code is 
prepared, section 43 requires that the Lord Chancellor must have consulted 
the National Assembly for Wales and such other persons as he considers 
appropriate. The Code is also subject to the approval of Parliament and 
must have been placed before both Houses of Parliament for a 40-day 
period without either House voting against it. This Code of Practice has been 
produced in accordance with these requirements.
The Code has statutory force, which means that certain categories of people 
have a legal duty to have regard to it when working with or caring for adults 
who may lack capacity to make decisions for themselves. These categories of 
people are listed below.
How should the Code of Practice be used?
The Code of Practice provides guidance to anyone who is working with and/
or caring for adults who may lack capacity to make particular decisions. It 
describes their responsibilities when acting or making decisions on behalf 
of individuals who lack the capacity to act or make these decisions for 
themselves. In particular, the Code of Practice focuses on those who have a 
duty of care to someone who lacks the capacity to agree to the care that is 
being provided.
Who is the Code of Practice for?
The Act does not impose a legal duty on anyone to ‘comply’ with the Code 
– it should be viewed as guidance rather than instruction. But if they have not 
followed relevant guidance contained in the Code then they will be expected 
to give good reasons why they have departed from it.
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Mental Capacity Act Code of Practice
Certain categories of people are legally required to ‘have regard to’ relevant 
guidance in the Code of Practice. That means they must be aware of the 
Code of Practice when acting or making decisions on behalf of someone 
who lacks capacity to make a decision for themselves, and they should be 
able to explain how they have had regard to the Code when acting or making 
decisions.
The categories of people that are required to have regard to the Code of 
Practice include anyone who is:
•  an attorney under a Lasting Power of Attorney (LPA) (see chapter 7)
•   a deputy appointed by the new Court of Protection (see chapter 8)
•   acting as an Independent Mental Capacity Advocate (see chapter 10)
•   carrying out research approved in accordance with the Act (see chapter 11)
•   acting in a professional capacity for, or in relation to, a person who lacks 
capacity working
•   being paid for acts for or in relation to a person who lacks capacity.
The last two categories cover a wide range of people. People acting in a 
professional capacity may include:
•   a variety of healthcare staff (doctors, dentists, nurses, therapists, 
radiologists, paramedics etc)
•   social care staff (social workers, care managers, etc)
•   others who may occasionally be involved in the care of people who lack 
capacity to make the decision in question, such as ambulance crew, 
housing workers, or police offi cers.
People who are being paid for acts for or in relation to a person who lacks 
capacity may include:
•   care assistants in a care home
•   care workers providing domiciliary care services, and
•   others who have been contracted to provide a service to people who lack 
capacity to consent to that service.
However, the Act applies more generally to everyone who looks after, or cares 
for, someone who lacks capacity to make particular decisions for themselves. 
This includes family carers or other carers. Although these carers are not 
legally required to have regard to the Code of Practice, the guidance given in 
the Code will help them to understand the Act and apply it. They should follow 
the guidance in the Code as far as they are aware of it.
2

Mental Capacity Act Code of Practice
What does ‘lacks capacity’ mean?
Introduction
One of the most important terms in the Code is ‘a person who lacks capacity’.
Whenever the term ‘a person who lacks capacity’ is used, it means a person 
who lacks capacity to make a particular decision or take a particular 
action for themselves at the time the decision or action needs to be taken.

This refl ects the fact that people may lack capacity to make some decisions 
for themselves, but will have capacity to make other decisions. For example, 
they may have capacity to make small decisions about everyday issues such 
as what to wear or what to eat, but lack capacity to make more complex 
decisions about fi nancial matters.
It also refl ects the fact that a person who lacks capacity to make a decision 
for themselves at a certain time may be able to make that decision at a later 
date. This may be because they have an illness or condition that means their 
capacity changes. Alternatively, it may be because at the time the decision 
needs to be made, they are unconscious or barely conscious whether due to 
an accident or being under anaesthetic or their ability to make a decision may 
be affected by the infl uence of alcohol or drugs.
Finally, it refl ects the fact that while some people may always lack capacity 
to make some types of decisions – for example, due to a condition or severe 
learning disability that has affected them from birth – others may learn new 
skills that enable them to gain capacity and make decisions for themselves.
Chapter 4 provides a full defi nition of what is meant by ‘lacks capacity’.
What does the Code of Practice actually cover?
The Code explains the Act and its key provisions.
•  Chapter 1 introduces the Mental Capacity Act 2005.
•  Chapter 2 sets out the fi ve statutory principles behind the Act and the way 
they affect how it is put in practice.
•  Chapter 3 explains how the Act makes sure that people are given the right 
help and support to make their own decisions.
•  Chapter 4 explains how the Act defi nes ‘a person who lacks capacity to 
make a decision’ and sets out a single clear test for assessing whether a 
person lacks capacity to make a particular decision at a particular time.
•  Chapter 5 explains what the Act means by acting in the best interests 
of someone lacking capacity to make a decision for themselves, and 
describes the checklist set out in the Act for working out what is in 
someone’s best interests.
3

Mental Capacity Act Code of Practice
•  Chapter 6 explains how the Act protects people providing care or 
treatment for someone who lacks the capacity to consent to the action 
being taken.
•  Chapter 7 shows how people who wish to plan ahead for the possibility 
that they might lack the capacity to make particular decisions for 
themselves in the future are able to grant Lasting Powers of Attorney (LPAs) 
to named individuals to make certain decisions on their behalf, and how 
attorneys appointed under an LPA should act.
•  Chapter 8 describes the role of the new Court of Protection, established 
under the Act, to make a decision or to appoint a decision-maker on 
someone’s behalf in cases where there is no other way of resolving a matter 
affecting a person who lacks capacity to make the decision in question.
•  Chapter 9 explains the procedures that must be followed if someone 
wishes to make an advance decision to refuse medical treatment to come 
into effect when they lack capacity to refuse the specifi ed treatment.
•  Chapter 10 describes the role of Independent Mental Capacity Advocates 
appointed under the Act to help and represent particularly vulnerable 
people who lack capacity to make certain signifi cant decisions. It also sets 
out when they should be instructed.
•  Chapter 11 provides guidance on how the Act sets out specifi c safeguards 
and controls for research involving, or in relation to, people lacking capacity 
to consent to their participation.
•  Chapter 12 explains those parts of the Act which can apply to children and 
young people and how these relate to other laws affecting them.
•  Chapter 13 explains how the Act relates to the Mental Health Act 1983.
•  Chapter 14 sets out the role of the Public Guardian, a new public offi ce 
established by the Act to oversee attorneys and deputies and to act as 
a single point of contact for referring allegations of abuse in relation to 
attorneys and deputies to other relevant agencies.
•  Chapter 15 examines the various ways that disputes over decisions made 
under the Act or otherwise affecting people lacking capacity to make 
relevant decisions can be resolved.
•  Chapter 16 summarises how the laws about data protection and freedom 
of information relate to the provisions of the Act.
4

Mental Capacity Act Code of Practice
What is the legal status of the Code?
Introduction
Where does it apply?
The Act and therefore this Code applies to everyone it concerns who is 
habitually resident or present in England and Wales. However, it will also be 
possible for the Court of Protection to consider cases which involve persons 
who have assets or property outside this jurisdiction, or who live abroad but 
have assets or property in England or Wales. 
What happens if people don’t comply with it?
There are no specifi c sanctions for failure to comply with the Code. But a 
failure to comply with the Code can be used in evidence before a court or 
tribunal in any civil or criminal proceedings, if the court or tribunal considers 
it to be relevant to those proceedings. For example, if a court or tribunal 
believes that anyone making decisions for someone who lacks capacity has 
not acted in the best interests of the person they care for, the court can use 
the person’s failure to comply with the Code as evidence. That’s why it’s 
important that anyone working with or caring for a person who lacks capacity 
to make specifi c decisions should become familiar with the Code.
Where can I find out more?
The Code of Practice is not an exhaustive guide or complete statement of the 
law. Other materials have been produced by the Department for Constitutional 
Affairs, the Department of Health and the Offi ce of the Public Guardian to 
help explain aspects of the Act from different perspectives and for people 
in different situations. These include guides for family carers and other 
carers and basic information of interest to the general public. Professional 
organisations may also produce specialist information and guidance for their 
members.
The Code also provides information on where to get more detailed guidance 
from other sources. A list of contact details is provided in Annex A and further 
information appears in the footnotes to each chapter. References made and 
any links provided to material or organisations do not form part of the Code 
and do not attract the same legal status. Signposts to further information are 
provided for assistance only and references made should not suggest that the 
Department for Constitutional Affairs endorses such material.
5

Mental Capacity Act Code of Practice
Using the code
References in the Code of Practice
Throughout the Code of Practice, the Mental Capacity Act 2005 is referred to 
as ‘the Act’ and any sections quoted refer to this Act unless otherwise stated. 
References are shown as follows: section 4(1). This refers to the section of the 
Act. The subsection number is in brackets.
Where reference is made to provisions from other legislation, the full title of 
the relevant Act will be set out, for example ‘the Mental Health Act 1983’, 
unless otherwise stated. (For example, in chapter 13, the Mental Health Act 
1983 is referred to as MHA and the Mental Capacity Act as MCA.) The Code 
of Practice is sometimes referred to as the Code.
Scenarios used in the Code of Practice
The Code includes many boxes within the text in which there are scenarios, 
using imaginary characters and situations. These are intended to help 
illustrate what is meant in the main text. The scenarios should not in any way 
be taken as templates for decisions that need to be made in similar situations.
Alternative formats and further information
The Code is also available in Welsh and can be made available in other 
formats on request.
6

Contents
1.  What is the Mental Capacity Act 2005? 
15
What decisions are covered by the Act, and what decisions 
are excluded? 
16
How does the Act relate to other legislation? 
18
What does the Act say about the Code of Practice? 
18

What are the statutory principles and how should they be applied? 19
Quick summary 
20
What is the role of the statutory principles? 
20
How should the statutory principles be applied? 
20
Principle 1: ‘A person must be assumed to have capacity unless 
it is established that he lacks capacity.’ (section1(2))
 20
Principle 2: ‘A person is not to be treated as unable to make a 
decision unless all practicable steps to help him to do so have 
been taken without success.’ (section1(3))
 22
Principle 3: ‘A person is not to be treated as unable to make a 
decision merely because he makes an unwise decision.’ (section 1(4))
 24
Principle 4: ‘An act done, or decision made, under this Act for or 
on behalf of a person who lacks capacity must be done, or made, 
in his best interests.’ (section 1(5))
 26
Principle 5: ‘Before the act is done, or the decision is made, 
regard must be had to whether the purpose for which it is 
needed can be as effectively achieved in a way that is less 
restrictive of the person’s rights and freedom of action.’ (section 1(6))
 27

How should people be helped to make their own decisions? 
29
Quick summary 
29
How can someone be helped to make a decision? 
30
What happens in emergency situations? 
31
What information should be provided to people and how should 
it be provided? 
31
What steps should be taken to put a person at ease? 
35
What other ways are there to enable decision-making? 
38
7

Mental Capacity Act Code of Practice

How does the Act defi ne a person’s capacity to make a 
decision and how should capacity be assessed? 

40
Quick summary 
40
What is mental capacity? 
41
What does the Act mean by ‘lack of capacity’? 
42
What safeguards does the Act provide around assessing 
someone’s capacity? 
43
What proof of lack of capacity does the Act require? 
44
What is the test of capacity? 
44
What does the Act mean by ‘inability to make a decision’? 
45
What other issues might affect capacity? 
49
When should capacity be assessed? 
52
Who should assess capacity? 
53
What is ‘reasonable belief’ of lack of capacity? 
55
What other factors might affect an assessment of capacity? 
56
What practical steps should be taken when assessing capacity? 
58
When should professionals be involved? 
59
Are assessment processes confi dential? 
61
What if someone refuses to be assessed? 
62
Who should keep a record of assessments? 
62
How can someone challenge a fi nding of lack of capacity? 
63
5   What does the Act mean when it talks about ‘best interests’? 
64
Quick summary 
65
What is the best interests principle and who does it apply to? 
66
What does the Act mean by best interests? 
68
Who can be a decision-maker? 
69
What must be taken into account when trying to work out 
someone’s best interests? 
71
What safeguards does the Act provide around working out 
someone’s best interests? 
73
How does a decision-maker work out what ‘all relevant 
circumstances’ are? 
74
How should the person who lacks capacity be involved in 
working out their best interests? 
75
How do the chances of someone regaining and developing 
capacity affect working out what is in their best interests? 
77
8

Mental Capacity Act Code of Practice
How should someone’s best interests be worked out when 
making decisions about life-sustaining treatment? 
79
Contents
How do a person’s wishes and feelings, beliefs and values affect 
working out what is in their best interests? 
80
Who should be consulted when working out someone’s best 
interests? 84
How can decision-makers respect confi dentiality? 
86
When does the best interests principle apply? 
86
What problems could arise when working out someone’s 
best interests? 
88

What protection does the Act offer for people providing care or 
treatment? 92

Quick summary 
92
What protection do people have when caring for those who lack 
capacity to consent? 
93
What type of actions might have protection from liability? 
94
Who is protected from liability by section 5? 
100
What steps should people take to be protected from liability? 
102
What happens in emergency situations? 
104
What happens in cases of negligence? 
105
What is the effect of an advance decision to refuse treatment? 
105
What limits are there on protection from liability? 
105
How does section 5 apply to attorneys and deputies? 
110
Who can pay for goods or services? 
111

What does the Act say about Lasting Powers of Attorney? 
114
Quick summary 
114
What is a Lasting Power of Attorney (LPA)? 
115
How does a donor create an LPA? 
117
Who can be an attorney? 
117
How should somebody register and use an LPA? 
119
What guidance should an attorney follow? 
119
What decisions can an LPA attorney make? 
120
Are there any other restrictions on attorneys’ powers? 
127
What powers does the Court of Protection have over LPAs? 
127
What responsibilities do attorneys have? 
128
What duties does the Act impose? 
129
9

Mental Capacity Act Code of Practice
What are an attorney’s other duties? 
131
How does the Act protect donors from abuse? 
134
What happens to existing EPAs once the Act comes into force? 
135

What is the role of the Court of Protection and court-appointed 
deputies? 137

Quick summary 
137
What is the Court of Protection? 
138
How can somebody make an application to the Court of Protection?  139
What powers does the Court of Protection have? 
141
What decisions can the court make? 
145
What are the rules for appointing deputies? 
146
When might a deputy need to be appointed? 
147
Who can be a deputy? 
149
Can the court protect people lacking capacity from fi nancial loss? 
151
Are there any restrictions on a deputy’s powers? 
151
What responsibilities do deputies have? 
151
What duties does the Act impose? 
152
What are a deputy’s other duties? 
153
Who is responsible for supervising deputies? 
156

What does the Act say about advance decisions to 
refuse treatment? 

158
Quick summary 
158
How can someone make an advance decision to refuse treatment? 
159
Who can make an advance decision to refuse treatment? 
160
What should people include in an advance decision? 
163
What rules apply to advance decisions to refuse life-sustaining 
treatment? 166
When should someone review or update an advance decision? 
167
How can someone withdraw an advance decision? 
167
How can someone make changes to an advance decision? 
168
How do advance decisions relate to other rules about 
decision-making? 168
How can somebody decide on the existence, validity and 
applicability of advance decisions? 
169
What should healthcare professionals do if an advance 
decision is not valid or applicable? 
172
10

Mental Capacity Act Code of Practice
What happens to decisions made before the Act comes into force? 
172
What implications do advance decisions have for healthcare 
Contents
professionals? 173
When can healthcare professionals be found liable? 
174
What if a healthcare professional has a conscientious objection 
to stopping or providing life-sustaining treatment? 
175
What happens if there is a disagreement about an advance decision?  176
10  What is the new Independent Mental Capacity Advocate 
service and how does it work? 
178
Quick summary 
178
What is the IMCA service? 
179
Who is responsible for delivering the service? 
181
Who can be an IMCA? 
184
What is an IMCA’s role? 
185
What happens if the IMCA disagrees with the decision-maker? 
189
What decisions require an IMCA? 
191
When can a local authority or NHS body decide to instruct an IMCA?  196
Who qualifi es for an IMCA? 
198
11  How does the Act affect research projects involving a 
person who lacks capacity? 
202
Quick summary 
202
Why does the Act cover research? 
203
What is ‘research’? 
203
What assumptions can a researcher make about capacity? 
204
What research does the Act cover? 
204
How can research get approval? 
206
What responsibilities do researchers have? 
210
What happens if urgent decisions are required during the 
research project? 
212
What happens for research involving human tissue? 
213
What should happen to research that started before the Act 
came into force? 
214
12   How does the Act apply to children and young people? 
216
Quick summary 
216
Does the Act apply to children? 
217
Does the Act apply to young people aged 16–17? 
219
11

Mental Capacity Act Code of Practice
Do any parts of the Act not apply to young people aged 16 or 17? 
219
What does the Act say about care or treatment of young people 
aged 16 or 17? 
220
What powers do the courts have in cases involving young people? 
223
13  What is the relationship between the Mental Capacity Act 
and the Mental Health Act 1983? 
225
Quick summary 
225
Who does the MHA apply to? 
226
What are the MCA’s limits? 
227
When can a person be detained under the MHA? 
228
How does the MCA apply to a patient subject to guardianship 
under the MHA? 
231
How does the MCA apply to a patient subject to after-care under 
supervision under the MHA? 
233
How does the Mental Capacity Act affect people covered by the 
Mental Health Act? 
234
What are the implications for people who need treatment for 
a mental disorder? 
235
How does the Mental Health Act affect advance decisions to 
refuse treatment? 
237
Does the MHA affect the duties of attorneys and deputies?  
238
Does the MHA affect when Independent Mental Capacity 
Advocates must be instructed? 
240
What is the effect of section 57 of the Mental Health Act on the MCA? 241
What changes does the Government plan to make to the 
MHA and the MCA? 
241
14  What means of protection exist for people who lack capacity 
to make decisions for themselves? 
243
Quick summary 
243
What is abuse? 
244
How does the Act protect people from abuse? 
247
How does the Public Guardian oversee LPAs? 
249
How does the Public Guardian supervise deputies? 
249
What happens if someone says they are worried about an 
attorney or deputy? 
250
How does the Act deal with ill treatment and wilful neglect? 
251
12

Mental Capacity Act Code of Practice
What other measures protect people from abuse? 
253
Who should check that staff are safe to work with vulnerable adults?  253
Contents
Who is responsible for monitoring the standard of care providers? 
254
What is an appointee, and who monitors them? 
255
Are there any other means of protection that people should be 
aware of? 
255
15  What are the best ways to settle disagreements and 
disputes about issues covered in the Act? 
257
Quick summary 
257
What options are there for settling disagreements? 
258
When is an advocate useful? 
259
When is mediation useful? 
260
How can someone complain about healthcare? 
261
How can somebody complain about social care? 
264
What if a complaint covers healthcare and social care? 
265
Who can handle complaints about other welfare issues? 
265
What is the best way to handle disagreement about a 
person’s fi nances? 
266
How can the Court of Protection help? 
266
Will public legal funding be available? 
267
16  What rules govern access to information about a person 
who lacks capacity? 
270
Quick summary 
270
What laws and regulations affect access to information? 
272
What information do people generally have a right to see? 
273
When can attorneys and deputies ask to see personal information? 
274
When can someone see information about healthcare or social care?  276
What fi nancial information can carers ask to see? 
278
Is information still confi dential after someone shares it? 
278
What is the best way to settle a disagreement about personal 
information? 278
Key words and phrases used in the Code 
280
Annex A 
292
13

Mental Capacity Act Code of Practice
14

1 What is the Mental Capacity 
Act 2005?
1.1  
The Mental Capacity Act 2005 (the Act) provides the legal framework 
for acting and making decisions on behalf of individuals who lack the 
mental capacity to make particular decisions for themselves. Everyone 
working with and/or caring for an adult who may lack capacity to make 
specifi c decisions must comply with this Act when making decisions 
or acting for that person, when the person lacks the capacity to make 
a particular decision for themselves. The same rules apply whether the 
decisions are life-changing events or everyday matters.
1.2  
The Act’s starting point is to confi rm in legislation that it should be 
assumed that an adult (aged 16 or over) has full legal capacity to 
make decisions for themselves (the right to autonomy) unless it can 
be shown that they lack capacity to make a decision for themselves 
at the time the decision needs to be made. This is known as the 
presumption of capacity. The Act also states that people must be given 
all appropriate help and support to enable them to make their own 
decisions or to maximise their participation in any decision-making 
process.
1.3 
The underlying philosophy of the Act is to ensure that any decision 
made, or action taken, on behalf of someone who lacks the capacity to 
make the decision or act for themselves is made in their best interests.
1.4 
The Act is intended to assist and support people who may lack 
capacity and to discourage anyone who is involved in caring 
for someone who lacks capacity from being overly restrictive or 
controlling. But the Act also aims to balance an individual’s right to 
make decisions for themselves with their right to be protected from 
harm if they lack capacity to make decisions to protect themselves.
1.5 
The Act sets out a legal framework of how to act and make decisions 
on behalf of people who lack capacity to make specifi c decisions for 
themselves. It sets out some core principles and methods for making 
decisions and carrying out actions in relation to personal welfare, 
healthcare and fi nancial matters affecting people who may lack 
capacity to make specifi c decisions about these issues for themselves.
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Mental Capacity Act Code of Practice
1.6 
Many of the provisions in the Act are based upon existing common law 
principles (i.e. principles that have been established through decisions 
made by courts in individual cases). The Act clarifi es and improves 
upon these principles and builds on current good practice which is 
based on the principles.
1.7 
The Act introduces several new roles, bodies and powers, all of which 
will support the Act’s provisions. These include:
•  Attorneys appointed under Lasting Powers of Attorney (see 
chapter 7)
•  The new Court of Protection, and court-appointed deputies (see 
chapter 8)
•  Independent Mental Capacity Advocates (see chapter 10).
 
The roles, bodies and powers are all explained in more depth in the 
specifi c chapters of the Code highlighted above.
What decisions are covered by the Act, and what decisions 
are excluded?

1.8 
The Act covers a wide range of decisions made, or actions taken, on 
behalf of people who may lack capacity to make specifi c decisions 
for themselves. These can be decisions about day-to-day matters 
– like what to wear, or what to buy when doing the weekly shopping 
– or decisions about major life-changing events, such as whether the 
person should move into a care home or undergo a major surgical 
operation.
1.9  
There are certain decisions which can never be made on behalf of a 
person who lacks capacity to make those specifi c decisions. This is 
because they are either so personal to the individual concerned, or 
governed by other legislation.
1.10   Sections 27–29 and 62 of the Act set out the specifi c decisions which 
can never be made or actions which can never be carried out under the 
Act, whether by family members, carers, professionals, attorneys or the 
Court of Protection. These are summarised below.
Decisions concerning family relationships (section 27)
 
 Nothing in the Act permits a decision to be made on someone else’s 
behalf on any of the following matters:
16

Mental Capacity Act Code of Practice
•  consenting to marriage or a civil partnership
•  consenting to have sexual relations
Chapter 1
•  consenting to a decree of divorce on the basis of two years’ 
separation
What is the 
Mental Capacity 
•  consenting to the dissolution of a civil partnership
Act 2005?
•  consenting to a child being placed for adoption or the making of an 
adoption order
•  discharging parental responsibility for a child in matters not relating 
to the child’s property, or
•  giving consent under the Human Fertilisation and Embryology Act 
1990.
Mental Health Act matters (section 28)
 
 Where a person who lacks capacity to consent is currently detained 
and being treated under Part 4 of the Mental Health Act 1983, nothing 
in the Act authorises anyone to:
•  give the person treatment for mental disorder, or
•  consent to the person being given treatment for mental disorder.
 
 Further guidance is given in chapter 13 of the Code.
Voting rights (section 29)
 
 Nothing in the Act permits a decision on voting, at an election for any 
public office or at a referendum, to be made on behalf of a person who 
lacks capacity to vote.
Unlawful killing or assisting suicide (section 62)
 
 For the avoidance of doubt, nothing in the Act is to be taken to affect 
the law relating to murder, manslaughter or assisting suicide.
1.11  Although the Act does not allow anyone to make a decision about 
these matters on behalf of someone who lacks capacity to make 
such a decision for themselves (for example, consenting to have 
sexual relations), this does not prevent action being taken to protect a 
vulnerable person from abuse or exploitation.
17

Mental Capacity Act Code of Practice
How does the Act relate to other legislation?
1.12  The Mental Capacity Act 2005 will apply in conjunction with other 
legislation affecting people who may lack capacity in relation to 
specifi c matters. This means that healthcare and social care staff 
acting under the Act should also be aware of their obligations under 
other legislation, including (but not limited to) the:
•  Care Standards Act 2000
•  Data Protection Act 1998
•  Disability Discrimination Act 1995
•  Human Rights Act 1998
•  Mental Health Act 1983
•  National Health Service and Community Care Act 1990
•  Human Tissue Act 2004.
What does the Act say about the Code of Practice?
1.13   Section 42 of the Act sets out the purpose of the Code of Practice, 
which is to provide guidance for specifi c people in specifi c 
circumstances. Section 43 explains the procedures that had to be 
followed in preparing the Code and consulting on its contents, and for 
its consideration by Parliament.
 
Section 42, subsections (4) and (5), set out the categories of people 
who are placed under a legal duty to ‘have regard to’ the Code and 
gives further information about the status of the Code. More details 
can be found in the Introduction, which explains the legal status of 
the Code.
18

2 What are the statutory principles and how 
should they be applied?
Section 1 of the Act sets out the five ‘statutory principles’ – the values that 
underpin the legal requirements in the Act. The Act is intended to be enabling 
and supportive of people who lack capacity, not restricting or controlling of 
their lives. It aims to protect people who lack capacity to make particular 
decisions, but also to maximise their ability to make decisions, or to 
participate in decision-making, as far as they are able to do so.
The fi ve statutory principles are:
1. 
A person must be assumed to have capacity unless it is established that 
they lack capacity.
2. 
A person is not to be treated as unable to make a decision unless all 
practicable steps to help him to do so have been taken without success.
3. 
A person is not to be treated as unable to make a decision merely 
because he makes an unwise decision.
4. 
An act done, or decision made, under this Act for or on behalf of a 
person who lacks capacity must be done, or made, in his best interests.
5. 
Before the act is done, or the decision is made, regard must be had 
to whether the purpose for which it is needed can be as effectively 
achieved in a way that is less restrictive of the person’s rights and 
freedom of action.
This chapter provides guidance on how people should interpret and apply the 
statutory principles when using the Act. Following the principles and applying 
them to the Act’s framework for decision-making will help to ensure not only 
that appropriate action is taken in individual cases, but also to point the way 
to solutions in difficult or uncertain situations.
In this chapter, as throughout the Code, a person’s capacity (or lack 
of capacity) refers specifically to their capacity to make a particular 
decision at the time it needs to be made.
19

Mental Capacity Act Code of Practice
Quick summary
•  Every adult has the right to make their own decisions if they have the 
capacity to do so. Family carers and healthcare or social care staff must 
assume that a person has the capacity to make decisions, unless it can be 
established that the person does not have capacity.
•  People should receive support to help them make their own decisions. 
Before concluding that individuals lack capacity to make a particular 
decision, it is important to take all possible steps to try to help them reach 
a decision themselves.
•  People have the right to make decisions that others might think are unwise. 
A person who makes a decision that others think is unwise should not 
automatically be labelled as lacking the capacity to make a decision.
•  Any act done for, or any decision made on behalf of, someone who lacks 
capacity must be in their best interests.
•  Any act done for, or any decision made on behalf of, someone who lacks 
capacity should be an option that is less restrictive of their basic rights and 
freedoms – as long as it is still in their best interests.
What is the role of the statutory principles?
2.1  
The statutory principles aim to:
•  protect people who lack capacity and
•  help them take part, as much as possible, in decisions that affect 
them.
 
They aim to assist and support people who may lack capacity to make 
particular decisions, not to restrict or control their lives.
2.2  
The statutory principles apply to any act done or decision made under 
the Act. When followed and applied to the Act’s decision-making 
framework, they will help people take appropriate action in individual 
cases. They will also help people fi nd solutions in diffi cult or uncertain 
situations.
How should the statutory principles be applied?
Principle 1: ‘A person must be assumed to have capacity unless it is 
established that he lacks capacity.’ (section1(2))

2.3  
This principle states that every adult has the right to make their own 
decisions – unless there is proof that they lack the capacity to make 
20

Mental Capacity Act Code of Practice
a particular decision when it needs to be made. This has been a 
fundamental principle of the common law for many years and it is now 
Chapter 2
set out in the Act.
2.4  
It is important to balance people’s right to make a decision with their 
What are 
right to safety and protection when they can’t make decisions to 
the statutory 
principles and 
protect themselves. But the starting assumption must always be that 
how should they 
an individual has the capacity, until there is proof that they do not. 
be applied?
Chapter 4 explains the Act’s defi nition of ‘lack of capacity’ and the 
processes involved in assessing capacity.
Scenario: Assessing a person’s capacity to make decisions
When planning for her retirement, Mrs Arnold made and registered a 
Lasting Power of Attorney (LPA) – a legal process that would allow 
her son to manage her property and financial affairs if she ever lacked 
capacity to manage them herself. She has now been diagnosed with 
dementia, and her son is worried that she is becoming confused about 
money.
Her son must assume that his mother has capacity to manage her 
affairs. Then he must consider each of Mrs Arnold’s financial decisions 
as she makes them, giving her any help and support she needs to make 
these decisions herself.
Mrs Arnold’s son goes shopping with her, and he sees she is quite 
capable of finding goods and making sure she gets the correct change. 
But when she needs to make decisions about her investments, Mrs 
Arnold gets confused – even though she has made such decisions in 
the past. She still doesn’t understand after her son explains the different 
options.
Her son concludes that she has capacity to deal with everyday financial 
matters but not more difficult affairs at this time. Therefore, he is able to 
use the LPA for the difficult financial decisions his mother can’t make. 
But Mrs Arnold can continue to deal with her other affairs for as long as 
she has capacity to do so.
2.5  
Some people may need help to be able to make a decision or to 
communicate their decision. However, this does not necessarily mean 
that they cannot make that decision – unless there is proof that they 
do lack capacity to do so. Anyone who believes that a person lacks 
capacity should be able to prove their case. Chapter 4 explains the 
standard of proof required.
21

Mental Capacity Act Code of Practice
Principle 2: ‘A person is not to be treated as unable to make a decision 
unless all practicable steps to help him to do so have been taken without 
success.’ (section1(3))

2.6  
It is important to do everything practical (the Act uses the term 
‘practicable’) to help a person make a decision for themselves 
before concluding that they lack capacity to do so. People with an 
illness or disability affecting their ability to make a decision should 
receive support to help them make as many decisions as they can. 
This principle aims to stop people being automatically labelled as 
lacking capacity to make particular decisions. Because it encourages 
individuals to play as big a role as possible in decision-making, it also 
helps prevent unnecessary interventions in their lives.
2.7 
The kind of support people might need to help them make a decision 
varies. It depends on personal circumstances, the kind of decision that 
has to be made and the time available to make the decision. It might 
include:
•  using a different form of communication (for example, non-verbal 
communication)
•  providing information in a more accessible form (for example, 
photographs, drawings, or tapes)
•  treating a medical condition which may be affecting the person’s 
capacity or
•  having a structured programme to improve a person’s capacity 
to make particular decisions (for example, helping a person with 
learning disabilities to learn new skills).
 
Chapter 3 gives more information on ways to help people make 
decisions for themselves.
22

Mental Capacity Act Code of Practice
Scenario: Taking steps to help people make decisions for 
themselves

Chapter 2
Mr Jackson is brought into hospital following a traffic accident. He is 
What are 
conscious but in shock. He cannot speak and is clearly in distress, 
the statutory 
making noises and gestures.
principles and 
how should they 
be applied?
From his behaviour, hospital staff conclude that Mr Jackson currently 
lacks the capacity to make decisions about treatment for his injuries, 
and they give him urgent treatment. They hope that after he has 
recovered from the shock they can use an advocate to help explain 
things to him.
However, one of the nurses thinks she recognises some of his gestures 
as sign language, and tries signing to him. Mr Jackson immediately 
becomes calmer, and the doctors realise that he can communicate in 
sign language. He can also answer some written questions about his 
injuries.
The hospital brings in a qualified sign-language interpreter and 
concludes that Mr Jackson has the capacity to make decisions about 
any further treatment.
2.8 
Anyone supporting a person who may lack capacity should not use 
excessive persuasion or ‘undue pressure’.1 This might include behaving 
in a manner which is overbearing or dominating, or seeking to infl uence 
the person’s decision, and could push a person into making a decision 
they might not otherwise have made. However, it is important to 
provide appropriate advice and information.
1 Undue 
infl uence in relation to consent to medical treatment was considered in Re T (Adult: 
Refusal of Treatment) [1992] 4 All E R 649, 662 and in fi nancial matters in Royal Bank of 
Scotland v Etridge
 [2001] UKHL 44.
23

Mental Capacity Act Code of Practice
Scenario: Giving appropriate advice and support
Sara, a young woman with severe depression, is getting treatment 
from mental health services. Her psychiatrist determines that she has 
capacity to make decisions about treatment, if she gets advice and 
support. 
Her mother is trying to persuade Sara to agree to electro-convulsive 
therapy (ECT), which helped her mother when she had clinical 
depression in the past. However, a friend has told Sara that ECT is 
‘barbaric’.
The psychiatrist provides factual information about the different types of 
treatment available and explains their advantages and disadvantages. 
She also describes how different people experience different reactions 
or side effects. Sara is then able to consider what treatment is right for 
her, based on factual information rather than the personal opinions of 
her mother and friend.
2.9  
In some situations treatment cannot be delayed while a person gets 
support to make a decision. This can happen in emergency situations 
or when an urgent decision is required (for example, immediate medical 
treatment). In these situations, the only practical and appropriate steps 
might be to keep a person informed of what is happening and why.
Principle 3: ‘A person is not to be treated as unable to make a decision 
merely because he makes an unwise decision.’ (section 1(4))

2.10   Everybody has their own values, beliefs, preferences and attitudes. A 
person should not be assumed to lack the capacity to make a decision 
just because other people think their decision is unwise. This applies 
even if family members, friends or healthcare or social care staff are 
unhappy with a decision.
24

Mental Capacity Act Code of Practice
Scenario: Allowing people to make decisions that others think 
are unwise

Chapter 2
Mr Garvey is a 40-year-old man with a history of mental health 
What are 
problems. He sees a Community Psychiatric Nurse (CPN) regularly. 
the statutory 
Mr Garvey decides to spend £2,000 of his savings on a camper van to 
principles and 
how should they 
travel around Scotland for six months. His CPN is concerned that it will 
be applied?
be difficult to give Mr Garvey continuous support and treatment while 
travelling, and that his mental health might deteriorate as a result.
However, having talked it through with his CPN, it is clear that 
Mr Garvey is fully aware of these concerns and has the capacity to 
make this particular decision. He has decided he would like to have a 
break and thinks this will be good for him.
Just because, in the CPN’s opinion, continuity of care might be a wiser 
option, it should not be assumed that Mr Garvey lacks the capacity to 
make this decision for himself.
2.11  There may be cause for concern if somebody:
•  repeatedly makes unwise decisions that put them at signifi cant risk 
of harm or exploitation or
•  makes a particular unwise decision that is obviously irrational or out 
of character.
 
These things do not necessarily mean that somebody lacks capacity. 
But there might be need for further investigation, taking into account 
the person’s past decisions and choices. For example, have they 
developed a medical condition or disorder that is affecting their 
capacity to make particular decisions? Are they easily infl uenced 
by undue pressure? Or do they need more information to help them 
understand the consequences of the decision they are making?
25

Mental Capacity Act Code of Practice
Scenario: Decisions that cause concern
Cyril, an elderly man with early signs of dementia, spends nearly £300 
on fresh fish from a door-to-door salesman. He has always been fond 
of fish and has previously bought small amounts in this way. Before his 
dementia, Cyril was always very careful with his money and would never 
have spent so much on fish in one go.
This decision alone may not automatically mean Cyril now lacks 
capacity to manage all aspects of his property and affairs. But his 
daughter makes further enquiries and discovers Cyril has overpaid his 
cleaner on several occasions – something he has never done in the 
past. He has also made payments from his savings that he cannot 
account for.
His daughter decides it is time to use the registered Lasting Power of 
Attorney her father made in the past. This gives her the authority to 
manage Cyril’s property and affairs whenever he lacks the capacity 
to manage them himself. She takes control of Cyril’s chequebook to 
protect him from possible exploitation, but she can still ensure he has 
enough money to spend on his everyday needs.
Principle 4: ‘An act done, or decision made, under this Act for or on behalf 
of a person who lacks capacity must be done, or made, in his best interests.’ 
(section 1(5))

2.12  The principle of acting or making a decision in the best interests of 
a person who lacks capacity to make the decision in question is 
a well-established principle in the common law.2 This principle is 
now set out in the Act, so that a person’s best interests must be the 
basis for all decisions made and actions carried out on their behalf in 
situations where they lack capacity to make those particular decisions 
for themselves. The only exceptions to this are around research (see 
chapter 11) and advance decisions to refuse treatment (see chapter 9) 
where other safeguards apply.
2  See for example Re MB (Medical Treatment) [1997] 2 FLR 426, CA; Re A (Male Sterilisation) 
[2000] 1 FLR 549; Re S (Sterilisation: Patient’s Best Interests) [2000] 2 FLR 389; Re F 
(Adult Patient: Sterilisation) [2001] Fam 15
26

Mental Capacity Act Code of Practice
2.13  It is impossible to give a single description of what ‘best interests’ are, 
because they depend on individual circumstances. However, section 4 
Chapter 2
of the Act sets out a checklist of steps to follow in order to determine 
what is in the best interests of a person who lacks capacity to make 
the decision in question each time someone acts or makes a decision 
What are 
on that person’s behalf. See chapter 5 for detailed guidance and 
the statutory 
principles and 
examples.
how should they 
be applied?
Principle 5: ‘Before the act is done, or the decision is made, regard must 
be had to whether the purpose for which it is needed can be as effectively 
achieved in a way that is less restrictive of the person’s rights and freedom of 
action.’ (section 1(6))

2.14  Before somebody makes a decision or acts on behalf of a person who 
lacks capacity to make that decision or consent to the act, they must 
always question if they can do something else that would interfere less 
with the person’s basic rights and freedoms. This is called fi nding the 
‘less restrictive alternative’. It includes considering whether there is a 
need to act or make a decision at all.
2.15   Where there is more than one option, it is important to explore ways 
that would be less restrictive or allow the most freedom for a person 
who lacks capacity to make the decision in question. However, the fi nal 
decision must always allow the original purpose of the decision or act 
to be achieved.
2.16   Any decision or action must still be in the best interests of the person 
who lacks capacity. So sometimes it may be necessary to choose an 
option that is not the least restrictive alternative if that option is in the 
person’s best interests. In practice, the process of choosing a less 
restrictive option and deciding what is in the person’s best interests will 
be combined. But both principles must be applied each time a decision 
or action may be taken on behalf of a person who lacks capacity to 
make the relevant decision.
27

Mental Capacity Act Code of Practice
Scenario: Finding a less restrictive option
Sunil, a young man with severe learning disabilities, also has a very 
severe and unpredictable form of epilepsy that is associated with drop 
attacks. These can result in serious injury. A neurologist has advised 
that, to limit the harm that might come from these attacks, Sunil should 
either be under constant close observation, or wear a protective helmet.
After assessment, it is decided that Sunil lacks capacity to decide 
on the most appropriate course of action for himself. But through his 
actions and behaviour, Sunil makes it clear he doesn’t like to be too 
closely observed – even though he likes having company.
The staff of the home where he lives consider various options, such as 
providing a special room for him with soft furnishings, finding ways to 
keep him under close observation or getting him to wear a helmet. In 
discussion with Sunil’s parents, they agree that the option that is in his 
best interests, and is less restrictive, will be the helmet – as it will enable 
him to go out, and prevent further harm.
28

How should people be helped to 
make their own decisions?
3
Before deciding that someone lacks capacity to make a particular decision, it 
is important to take all practical and appropriate steps to enable them to make 
that decision themselves (statutory principle 2, see chapter 2). In addition, 
as section 3(2) of the Act underlines, these steps (such as helping individuals 
to communicate) must be taken in a way which refl ects the person’s 
individual circumstances and meets their particular needs. This chapter 
provides practical guidance on how to support people to make decisions for 
themselves, or play as big a role as possible in decision-making.
In this chapter, as throughout the Code, a person’s capacity (or lack of 
capacity) refers specifi cally to their capacity to make a particular decision 
at the time it needs to be made.
Quick summary
To help someone make a decision for themselves, check the following points:
Providing relevant information
•  Does the person have all the relevant information they need to make a 
particular decision?
•  If they have a choice, have they been given information on all the 
alternatives?
Communicating in an appropriate way
•  Could information be explained or presented in a way that is easier for the 
person to understand (for example, by using simple language or visual 
aids)?
•  Have different methods of communication been explored if required, 
including non-verbal communication?
•  Could anyone else help with communication (for example, a family member, 
support worker, interpreter, speech and language therapist or advocate)?
29

Mental Capacity Act Code of Practice
Making the person feel at ease
•  Are there particular times of day when the person’s understanding is 
better?
•  Are there particular locations where they may feel more at ease?
•  Could the decision be put off to see whether the person can make the 
decision at a later time when circumstances are right for them?
Supporting the person
•  Can anyone else help or support the person to make choices or express a 
view?
How can someone be helped to make a decision?
3.1  
There are several ways in which people can be helped and supported 
to enable them to make a decision for themselves. These will vary 
depending on the decision to be made, the time-scale for making the 
decision and the individual circumstances of the person making it.
3.2 
The Act applies to a wide range of people with different conditions 
that may affect their capacity to make particular decisions. So, the 
appropriate steps to take will depend on:
•  a person’s individual circumstances (for example, somebody with 
learning diffi culties may need a different approach to somebody with 
dementia)
•  the decision the person has to make and
•  the length of time they have to make it.
3.3  Signifi cant, one-off decisions (such as moving house) will require 
different considerations from day-to-day decisions about a person’s 
care and welfare. However, the same general processes should apply 
to each decision.
3.4  
In most cases, only some of the steps described in this chapter will be 
relevant or appropriate, and the list included here is not exhaustive. It is 
up to the people (whether family carers, paid carers, healthcare staff or 
anyone else) caring for or supporting an individual to consider what is 
possible and appropriate in individual cases. In all cases it is extremely 
important to fi nd the most effective way of communicating with the 
person concerned. Good communication is essential for explaining 
relevant information in an appropriate way and for ensuring that the 
steps being taken meet an individual’s needs.
30

Mental Capacity Act Code of Practice
3.5  
Providing appropriate help with decision-making should form part 
of care planning processes for people receiving health or social care 
Chapter 3
services. Examples include:
•  Person Centred Planning for people with learning disabilities
How should 
people be helped 
•  the Care Programme Approach for people with mental disorders
to make their 
own decisions?
•  the Single Assessment Process for older people in England, and
• the Unifi ed Assessment Process in Wales.
What happens in emergency situations?
3.6 
Clearly, in emergency medical situations (for example, where a person 
collapses with a heart attack or for some unknown reason and is 
brought unconscious into a hospital), urgent decisions will have to 
be made and immediate action taken in the person’s best interests. 
In these situations, it may not be practical or appropriate to delay the 
treatment while trying to help the person make their own decisions, 
or to consult with any known attorneys or deputies. However, even in 
emergency situations, healthcare staff should try to communicate with 
the person and keep them informed of what is happening.
What information should be provided to people and how 
should it be provided?

3.7  
Providing relevant information is essential in all decision-making. 
For example, to make a choice about what they want for breakfast, 
people need to know what food is available. If the decision concerns 
medical treatment, the doctor must explain the purpose and effect of 
the course of treatment and the likely consequences of accepting or 
refusing treatment.
3.8 
All practical and appropriate steps must be taken to help people to 
make a decision for themselves. Information must be tailored to an 
individual’s needs and abilities. It must also be in the easiest and most 
appropriate form of communication for the person concerned.
What information is relevant?
3.9  
The Act cannot state exactly what information will be relevant in each 
case. Anyone helping someone to make a decision for themselves 
should therefore follow these steps.
31

Mental Capacity Act Code of Practice
•  Take time to explain anything that might help the person make a 
decision. It is important that they have access to all the information 
they need to make an informed decision.
•  Try not to give more detail than the person needs – this might 
confuse them. In some cases, a simple, broad explanation will be 
enough. But it must not miss out important information.
•  What are the risks and benefi ts? Describe any foreseeable 
consequences of making the decision, and of not making any 
decision at all.
•  Explain the effects the decision might have on the person and those 
close to them – including the people involved in their care.
•  If they have a choice, give them the same information in a balanced 
way for all the options.
•  For some types of decisions, it may be important to give access 
to advice from elsewhere. This may be independent or specialist 
advice (for example, from a medical practitioner or a fi nancial or 
legal adviser). But it might simply be advice from trusted friends or 
relatives.
Communication – general guidance
3.10   To help someone make a decision for themselves, all possible and 
appropriate means of communication should be tried.
•  Ask people who know the person well about the best form of 
communication (try speaking to family members, carers, day centre 
staff or support workers). They may also know somebody the 
person can communicate with easily, or the time when it is best to 
communicate with them.
•  Use simple language. Where appropriate, use pictures, objects or 
illustrations to demonstrate ideas.
•  Speak at the right volume and speed, with appropriate words 
and sentence structure. It may be helpful to pause to check 
understanding or show that a choice is available.
•  Break down diffi cult information into smaller points that are easy to 
understand. Allow the person time to consider and understand each 
point before continuing.
•  It may be necessary to repeat information or go back over a point 
several times.
32

Mental Capacity Act Code of Practice
•  Is help available from people the person trusts (relatives, friends, GP, 
social worker, religious or community leaders)? If so, make sure the 
Chapter 3
person’s right to confi dentiality is respected.
•  Be aware of cultural, ethnic or religious factors that shape a person’s 
How should 
way of thinking, behaviour or communication. For example, in some 
people be helped 
cultures it is important to involve the community in decision-making. 
to make their 
Some religious beliefs (for example, those of Jehovah’s Witnesses or 
own decisions?
Christian Scientists) may infl uence the person’s approach to medical 
treatment and information about treatment decisions.
•  If necessary, consider using a professional language interpreter. 
Even if a person communicated in English or Welsh in the past, they 
may have lost some verbal skills (for example, because of dementia). 
They may now prefer to communicate in their fi rst language. It is 
often more appropriate to use a professional interpreter rather than 
to use family members.
•  If using pictures to help communication, make sure they are relevant 
and the person can understand them easily. For example, a red bus 
may represent a form of transport to one person but a day trip to 
another.
•  Would an advocate (someone who can support and represent 
the person) improve communication in the current situation? 
(See chapters 10 and 15 for more information about advocates.)
33

Mental Capacity Act Code of Practice
Scenario: Providing relevant information
Mrs Thomas has Alzheimer’s disease and lives in a care home. She 
enjoys taking part in the activities provided at the home. Today there is a 
choice between going to a fl ower show, attending her usual pottery class 
or watching a DVD. Although she has the capacity to choose, having to 
decide is making her anxious.
The care assistant carefully explains the different options. She tells 
Mrs Thomas about the DVD she could watch, but Mrs Thomas doesn’t 
like the sound of it. The care assistant shows her a leafl et about the 
fl ower show. She explains the plans for the day, where the show is 
being held and how long it will take to get there in the mini-van. She has 
to repeat this information several times, as Mrs Thomas keeps asking 
whether they will be back in time for supper. She also tells Mrs Thomas 
that one of her friends is going on the trip.
At fi rst, Mrs Thomas is reluctant to disturb her usual routine. But the 
care assistant reassures her she will not lose her place at pottery if she 
misses a class. With this information, Mrs Thomas can therefore choose 
whether or not to go on the day trip.
Helping people with specific communication or cognitive problems
3.11   Where people have specifi c communication or cognitive problems, the 
following steps can help:
•  Find out how the person is used to communicating. Do they use 
picture boards or Makaton (signs and symbols for people with 
communication or learning diffi culties)? Or do they have a way of 
communicating that is only known to those close to them?
•  If the person has hearing diffi culties, use their preferred method of 
communication (for example, visual aids, written messages or sign 
language). Where possible, use a qualifi ed interpreter.
•  Are mechanical devices such as voice synthesisers, keyboards or 
other computer equipment available to help?
•  If the person does not use verbal communication skills, allow more 
time to learn how to communicate effectively.
•  For people who use non-verbal methods of communication, 
their behaviour (in particular, changes in behaviour) can provide 
indications of their feelings.
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Mental Capacity Act Code of Practice
•  Some people may prefer to use non-verbal means of communication 
and can communicate most effectively in written form using 
Chapter 3
computers or other communication technologies. This is particularly 
true for those with autistic spectrum disorders.
How should 
•  For people with specifi c communication diffi culties, consider other 
people be helped 
types of professional help (for example, a speech and language 
to make their 
therapist or an expert in clinical neuropsychology).
own decisions?
Scenario: Helping people with specifi c communication diffi culties
David is a deafblind man with learning disabilities who has no formal 
communication. He lives in a specialist home. He begins to bang his 
head against the wall and repeats this behaviour throughout the day. 
He has not done this before.
The staff in the home are worried and discuss ways to reduce the risk 
of injury. They come up with a range of possible interventions, aimed 
at engaging him with activities and keeping him away from objects that 
could injure him. They assess these as less restrictive ways to ensure 
he is safe. But David lacks the capacity to make a decision about which 
would the best option.
The staff call in a specialist in challenging behaviour, who says that 
David’s behaviour is communicative. After investigating this further, staff 
discover he is in pain because of tooth decay. They consult a dentist 
about how to resolve this, and the dentist decides it is in David’s best 
interests to get treatment for the tooth decay. After treatment, David’s 
head-banging stops.
What steps should be taken to put a person at ease?
3.12   To help put someone at ease and so improve their ability to make 
a decision, careful consideration should be given to both location 
and timing.
Location
3.13   In terms of location, consider the following:
•  Where possible, choose a location where the person feels most at 
ease. For example, people are usually more comfortable in their own 
home than at a doctor’s surgery.
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Mental Capacity Act Code of Practice
•  Would the person fi nd it easier to make their decision in a relevant 
location? For example, could you help them decide about medical 
treatment by taking them to hospital to see what is involved?
•  Choose a quiet location where the discussion can’t be easily 
interrupted.
•  Try to eliminate any background noise or distractions (for example, 
the television or radio, or people talking).
•  Choose a location where the person’s privacy and dignity can be 
properly respected.
Timing
3.14   In terms of timing, consider the following:
•  Try to choose the time of day when the person is most alert – some 
people are better in the mornings, others are more lively in the 
afternoon or early evening. It may be necessary to try several times 
before a decision can be made.
•  If the person’s capacity is likely to improve in the foreseeable future, 
wait until it has done so – if practical and appropriate. For example, 
this might be the case after treatment for depression or a psychotic 
episode. Obviously, this may not be practical and appropriate if the 
decision is urgent.
•  Some medication could affect a person’s capacity (for example, 
medication which causes drowsiness or affects memory). Can the 
decision be delayed until side effects have subsided?
•  Take one decision at a time – be careful to avoid making the person 
tired or confused.
•  Don’t rush – allow the person time to think things over or ask for 
clarifi cation, where that is possible and appropriate.
•  Avoid or challenge time limits that are unnecessary if the decision 
is not urgent. Delaying the decision may enable further steps to be 
taken to assist people to make the decision for themselves.
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Mental Capacity Act Code of Practice
Scenario: Getting the location and timing right
Chapter 3
Luke, a young man, was seriously injured in a road traffi c accident and 
suffered permanent brain damage. He has been in hospital several 
How should 
months, and has made good progress, but he gets very frustrated at his 
people be helped 
inability to concentrate or do things for himself.
to make their 
own decisions?
Luke now needs surgical treatment on his leg. During the early morning 
ward round, the surgeon tries to explain what is involved in the operation. 
She asks Luke to sign a consent form, but he gets angry and says he 
doesn’t want to talk about it.
His key nurse knows that Luke becomes more alert and capable later 
in the day. After lunch, she asks him if he would like to discuss the 
operation again. She also knows that he responds better one-to-one 
than in a group. So she takes Luke into a private room and repeats the 
information that the surgeon gave him earlier. He understands why the 
treatment is needed, what is involved and the likely consequences. 
Therefore, Luke has the capacity to make a decision about the operation.
Support from other people
3.15   In some circumstances, individuals will be more comfortable making 
decisions when someone else is there to support them.
•  Might the person benefi t from having another person present? 
Sometimes having a relative or friend nearby can provide helpful 
support and reduce anxiety. However, some people might fi nd this 
intrusive, and it could increase their anxiety or affect their ability to 
make a free choice. Find ways of getting the person’s views on this, 
for example, by watching their behaviour towards other people.
•  Always respect a person’s right to confi dentiality.
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Mental Capacity Act Code of Practice
Scenario: Getting help from other people
Jane has a learning disability. She expresses herself using some words, 
facial expressions and body language. She has lived in her current 
community home all her life, but now needs to move to a new group 
home. She fi nds it diffi cult to discuss abstract ideas or things she hasn’t 
experienced. Staff conclude that she lacks the capacity to decide for 
herself which new group home she should move to.
The staff involve an advocate to help Jane express her views. Jane’s 
advocate spends time with her in different environments. The advocate 
uses pictures, symbols and Makaton to fi nd out the things that are 
important to Jane, and speaks to people who know Jane to fi nd out what 
they think she likes. She then supports Jane to show their work to her 
care manager, and checks that the new homes suggested for her are 
able to meet Jane’s needs and preferences.
When the care manager has found some suitable places, Jane’s 
advocate visits the homes with Jane. They take photos of the houses to 
help her distinguish between them. The advocate then uses the photos 
to help Jane work out which home she prefers. Jane’s own feelings can 
now play an important part in deciding what is in her best interests – and 
so in the fi nal decision about where she will live.
What other ways are there to enable decision-making?
3.16   There are other ways to help someone make a decision for themselves.
•  Many people fi nd it helpful to talk things over with people they trust 
– or people who have been in a similar situation or faced similar 
dilemmas. For example, people with learning diffi culties may benefi t 
from the help of a designated support worker or being part of a 
support network.
•  If someone is very distressed (for example, following a death of 
someone close) or where there are long-standing problems that 
affect someone’s ability to understand an issue, it may be possible 
to delay a decision so that the person can have psychological 
therapy, if needed.
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Mental Capacity Act Code of Practice
•  Some organisations have produced materials to help people who 
need support to make decisions and for those who support them. 
Chapter 3
Some of this material is designed to help people with specifi c 
conditions, such as Alzheimer’s disease or profound learning 
disability.
How should 
people be helped 
•  It may be important to provide access to technology. For example, 
to make their 
some people who appear not to communicate well verbally can do 
own decisions?
so very well using computers.
Scenario: Making the most of technology
Ms Patel has an autistic spectrum disorder. Her family and care staff find 
it difficult to communicate with her. She refuses to make eye contact, 
and gets very upset and angry when her carers try to encourage her to 
speak.
One member of staff notices that Ms Patel is interested in the computer 
equipment. He shows her how to use the keyboard, and they are able 
to have a conversation using the computer. An IT specialist works with 
her to make sure she can make the most of her computing skills to 
communicate her feelings and decisions.
39

4 How does the Act define a person’s 
capacity to make a decision and 
how should capacity be assessed?
This chapter explains what the Act means by ‘capacity’ and ‘lack of 
capacity’. It provides guidance on how to assess whether someone has the 
capacity to make a decision, and suggests when professionals should be 
involved in the assessment.
In this chapter, as throughout the Code, a person’s capacity (or lack 
of capacity) refers specifically to their capacity to make a particular 
decision at the time it needs to be made.
Quick summary
This checklist is a summary of points to consider when assessing a person’s 
capacity to make a specifi c decision. Readers should also refer to the more 
detailed guidance in this chapter and chapters 2 and 3.
Presuming someone has capacity
•  The starting assumption must always be that a person has the capacity to 
make a decision, unless it can be established that they lack capacity.
Understanding what is meant by capacity and lack of capacity
•  A person’s capacity must be assessed specifi cally in terms of their capacity 
to make a particular decision at the time it needs to be made.
Treating everyone equally
•  A person’s capacity must not be judged simply on the basis of their age, 
appearance, condition or an aspect of their behaviour.
Supporting the person to make the decision for themselves
•  It is important to take all possible steps to try to help people make a 
decision for themselves (see chapter 2, principle 2, and chapter 3).
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Mental Capacity Act Code of Practice
Assessing capacity
Chapter 4
Anyone assessing someone’s capacity to make a decision for themselves 
should use the two-stage test of capacity.
How does the 
•  Does the person have an impairment of the mind or brain, or is there some 
Act define a 
person’s capacity 
sort of disturbance affecting the way their mind or brain works? (It doesn’t 
to make a 
matter whether the impairment or disturbance is temporary or permanent.)
decision and how 
should capacity 
•  If so, does that impairment or disturbance mean that the person is unable 
be assessed?
to make the decision in question at the time it needs to be made?
Assessing ability to make a decision
•  Does the person have a general understanding of what decision they need 
to make and why they need to make it?
•  Does the person have a general understanding of the likely consequences 
of making, or not making, this decision?
•  Is the person able to understand, retain, use and weigh up the information 
relevant to this decision?
•  Can the person communicate their decision (by talking, using sign language 
or any other means)? Would the services of a professional (such as a 
speech and language therapist) be helpful?
Assessing capacity to make more complex or serious decisions
•  Is there a need for a more thorough assessment (perhaps by involving a 
doctor or other professional expert)?
What is mental capacity?
4.1  
Mental capacity is the ability to make a decision.
•  This includes the ability to make a decision that affects daily life – 
such as when to get up, what to wear or whether to go to the doctor 
when feeling ill – as well as more serious or signifi cant decisions.
•  It also refers to a person’s ability to make a decision that may have 
legal consequences – for them or others. Examples include agreeing 
to have medical treatment, buying goods or making a will.
4.2  
The starting point must always be to assume that a person has the 
capacity to make a specifi c decision (see chapter 2, principle 1). 
Some people may need help to be able to make or communicate a 
41

Mental Capacity Act Code of Practice
decision (see chapter 3). But this does not necessarily mean that they 
lack capacity to do so. What matters is their ability to carry out the 
processes involved in making the decision – and not the outcome.
What does the Act mean by ‘lack of capacity’?
4.3  
Section 2(1) of the Act states:
 
‘For the purposes of this Act, a person lacks capacity in relation to a 
matter if at the material time he is unable to make a decision for himself 
in relation to the matter because of an impairment of, or a disturbance 
in the functioning of, the mind or brain.’
 
This means that a person lacks capacity if:
•  they have an impairment or disturbance (for example, a disability, 
condition or trauma) that affects the way their mind or brain works, 
and
•  the impairment or disturbance means that they are unable to make a 
specifi c decision at the time it needs to be made.
4.4  
An assessment of a person’s capacity must be based on their ability to 
make a specifi c decision at the time it needs to be made, and not their 
ability to make decisions in general. Section 3 of the Act defi nes what it 
means to be unable to make a decision (this is explained in paragraph 
4.14 below).
4.5  
Section 2(2) states that the impairment or disturbance does not have 
to be permanent. A person can lack capacity to make a decision at the 
time it needs to be made even if:
•  the loss of capacity is partial
•  the loss of capacity is temporary
•  their capacity changes over time.
 
A person may also lack capacity to make a decision about one issue 
but not about others.
4.6  
The Act generally applies to people who are aged 16 or older. Chapter 
12 explains how the Act affects children and young people – in 
particular those aged 16 and 17 years.
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Mental Capacity Act Code of Practice
What safeguards does the Act provide around assessing 
someone’s capacity?

Chapter 4
4.7  
An assessment that a person lacks capacity to make a decision must 
How does the 
never be based simply on:
Act define a 
person’s capacity 
• their age
to make a 
decision and how 
• their appearance
should capacity 
•  assumptions about their condition, or
be assessed?
•  any aspect of their behaviour. (section 2(3))
4.8  
The Act deliberately uses the word ‘appearance’, because it covers all 
aspects of the way people look. So for example, it includes the physical 
characteristics of certain conditions (for example, scars, features linked 
to Down’s syndrome or muscle spasms caused by cerebral palsy) 
as well as aspects of appearance like skin colour, tattoos and body 
piercings, or the way people dress (including religious dress).
4.9  
The word ‘condition’ is also wide-ranging. It includes physical 
disabilities, learning diffi culties and disabilities, illness related 
to age, and temporary conditions (for example, drunkenness or 
unconsciousness). Aspects of behaviour might include extrovert (for 
example, shouting or gesticulating) and withdrawn behaviour (for 
example, talking to yourself or avoiding eye contact).
Scenario: Treating everybody equally
Tom, a man with cerebral palsy, has slurred speech. Sometimes he also 
falls over for no obvious reason.
One day Tom falls in the supermarket. Staff call an ambulance, even 
though he says he is fi ne. They think he may need treatment after his fall.
When the ambulance comes, the ambulance crew know they must not 
make assumptions about Tom’s capacity to decide about treatment, 
based simply on his condition and the effects of his disability. They talk 
to him and fi nd that he is capable of making healthcare decisions for 
himself.
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Mental Capacity Act Code of Practice
What proof of lack of capacity does the Act require?
4.10   Anybody who claims that an individual lacks capacity should be able 
to provide proof. They need to be able to show, on the balance of 
probabilities
, that the individual lacks capacity to make a particular 
decision, at the time it needs to be made (section 2(4)). This means 
being able to show that it is more likely than not that the person lacks 
capacity to make the decision in question.
What is the test of capacity?
 
To help determine if a person lacks capacity to make particular 
decisions, the Act sets out a two-stage test of capacity.
Stage 1: Does the person have an impairment of, or a disturbance in the 
functioning of, their mind or brain?

4.11   Stage 1 requires proof that the person has an impairment of the mind 
or brain, or some sort of or disturbance that affects the way their 
mind or brain works. If a person does not have such an impairment or 
disturbance of the mind or brain, they will not lack capacity under the 
Act.
4.12   Examples of an impairment or disturbance in the functioning of the 
mind or brain may include the following:
•  conditions associated with some forms of mental illness
• dementia
• signifi cant learning disabilities
•  the long-term effects of brain damage
•  physical or medical conditions that cause confusion, drowsiness or 
loss of consciousness
• delirium
•  concussion following a head injury, and
•  the symptoms of alcohol or drug use.
44

Mental Capacity Act Code of Practice
Scenario: Assessing whether an impairment or disturbance is 
affecting someone’s ability to make a decision

Chapter 4
Mrs Collins is 82 and has had a stroke. This has weakened the left-hand 
How does the 
side of her body. She is living in a house that has been the family home 
Act define a 
person’s capacity 
for years. Her son wants her to sell her house and live with him.
to make a 
decision and how 
Mrs Collins likes the idea, but her daughter does not. She thinks her 
should capacity 
mother will lose independence and her condition will get worse. She 
be assessed?
talks to her mother’s consultant to get information that will help stop the 
sale. But he says that although Mrs Collins is anxious about the physical 
effects the stroke has had on her body, it has not caused any mental 
impairment or affected her brain, so she still has capacity to make her 
own decision about selling her house.
Stage 2: Does the impairment or disturbance mean that the person is 
unable to make a specifi c decision when they need to?

4.13  For a person to lack capacity to make a decision, the Act says 
their impairment or disturbance must affect their ability to make the 
specifi c decision when they need to. But fi rst people must be given all 
practical and appropriate support to help them make the decision for 
themselves (see chapter 2, principle 2). Stage 2 can only apply if all 
practical and appropriate support to help the person make the decision 
has failed. See chapter 3 for guidance on ways of helping people to 
make their own decisions.
What does the Act mean by ‘inability to make a decision’?
4.14  A person is unable to make a decision if they cannot:
 1. 
 
understand information about the decision to be made (the Act calls 
this ‘relevant information’)
 
2.  retain that information in their mind
 3. 
 
use or weigh that information as part of the decision-making 
process, or
 4. 
 
communicate their decision (by talking, using sign language or any 
other means). See section 3(1).
45

Mental Capacity Act Code of Practice
4.15   These four points are explained in more detail below. The fi rst three 
should be applied together. If a person cannot do any of these three 
things, they will be treated as unable to make the decision. The fourth 
only applies in situations where people cannot communicate their 
decision in any way.
Understanding information about the decision to be made
4.16   It is important not to assess someone’s understanding before they 
have been given relevant information about a decision. Every effort 
must be made to provide information in a way that is most appropriate 
to help the person to understand. Quick or inadequate explanations are 
not acceptable unless the situation is urgent (see chapter 3 for some 
practical steps). Relevant information includes:
•  the nature of the decision
•  the reason why the decision is needed, and
•  the likely effects of deciding one way or another, or making no 
decision at all.
4.17   Section 3(2) outlines the need to present information in a way that 
is appropriate to meet the individual’s needs and circumstances. 
It also stresses the importance of explaining information using the 
most effective form of communication for that person (such as simple 
language, sign language, visual representations, computer support or 
any other means).
4.18   For example:
•  a person with a learning disability may need somebody to read 
information to them. They might also need illustrations to help them 
to understand what is happening. Or they might stop the reader to 
ask what things mean. It might also be helpful for them to discuss 
information with an advocate.
•  a person with anxiety or depression may fi nd it diffi cult to reach a 
decision about treatment in a group meeting with professionals. 
They may prefer to read the relevant documents in private. This way 
they can come to a conclusion alone, and ask for help if necessary.
•  someone who has a brain injury might need to be given information 
several times. It will be necessary to check that the person 
understands the information. If they have diffi culty understanding, 
it might be useful to present information in a different way (for 
example, different forms of words, pictures or diagrams). Written 
information, audiotapes, videos and posters can help people 
remember important facts.
46

Mental Capacity Act Code of Practice
4.19   Relevant information must include what the likely consequences of a 
decision would be (the possible effects of deciding one way or another) 
Chapter 4
– and also the likely consequences of making no decision at all (section 
3(4)). In some cases, it may be enough to give a broad explanation 
using simple language. But a person might need more detailed 
How does the 
information or access to advice, depending on the decision that needs 
Act define a 
person’s capacity 
to be made. If a decision could have serious or grave consequences, 
to make a 
it is even more important that a person understands the information 
decision and how 
relevant to that decision.
should capacity 
be assessed?
Scenario: Providing relevant information in an appropriate format
Mr Leslie has learning disabilities and has developed an irregular 
heartbeat. He has been prescribed medication for this, but is anxious 
about having regular blood tests to check his medication levels. His 
doctor gives him a leafl et to explain:
•  the reason for the tests
•  what a blood test involves
•  the risks in having or not having the tests, and
•  that he has the right to decide whether or not to have the test.
The leafl et uses simple language and photographs to explain these 
things. Mr Leslie’s carer helps him read the leafl et over the next few 
days, and checks that he understands it.
Mr Leslie goes back to tell the doctor that, even though he is scared 
of needles, he will agree to the blood tests so that he can get the right 
medication. He is able to pick out the equipment needed to do the blood 
test. So the doctor concludes that Mr Leslie can understand, retain and 
use the relevant information and therefore has the capacity to make the 
decision to have the test.
Retaining information
4.20   The person must be able to hold the information in their mind long 
enough to use it to make an effective decision. But section 3(3) states 
that people who can only retain information for a short while must not 
automatically be assumed to lack the capacity to decide – it depends 
on what is necessary for the decision in question. Items such as 
notebooks, photographs, posters, videos and voice recorders can help 
people record and retain information.
47

Mental Capacity Act Code of Practice
Scenario: Assessing a person’s ability to retain information
Walter, an elderly man, is diagnosed with dementia and has problems 
remembering things in the short term. He can’t always remember his 
great-grandchildren’s names, but he recognises them when they come to 
visit. He can also pick them out on photographs.
Walter would like to buy premium bonds (a type of fi nancial investment) 
for each of his great-grandchildren. He asks his solicitor to make the 
arrangements. After assessing his capacity to make fi nancial decisions, 
the solicitor is satisfi ed that Walter has capacity to make this decision, 
despite his short-term memory problems.
Using or weighing information as part of the decision-making process
4.21   For someone to have capacity, they must have the ability to weigh 
up information and use it to arrive at a decision. Sometimes people 
can understand information but an impairment or disturbance stops 
them using it. In other cases, the impairment or disturbance leads to a 
person making a specifi c decision without understanding or using the 
information they have been given.3
4.22   For example, a person with the eating disorder anorexia nervosa may 
understand information about the consequences of not eating. But 
their compulsion not to eat might be too strong for them to ignore. 
Some people who have serious brain damage might make impulsive 
decisions regardless of information they have been given or their 
understanding of it.
Inability to communicate a decision in any way
4.23   Sometimes there is no way for a person to communicate. This will 
apply to very few people, but it does include:
•  people who are unconscious or in a coma, or
•  those with the very rare condition sometimes known as ‘locked-in 
syndrome’, who are conscious but cannot speak or move at all.
3  This issue has been considered in a number of court cases, including Re MB [1997] 2 FLR 
426; R v Collins and Ashworth Hospital Authority ex parte Brady [2001] 58 BMLR 173
48

Mental Capacity Act Code of Practice
 
If a person cannot communicate their decision in any way at all, the Act 
says they should be treated as if they are unable to make that decision.
Chapter 4
4.24   Before deciding that someone falls into this category, it is important to 
make all practical and appropriate efforts to help them communicate. 
How does the 
This might call for the involvement of speech and language therapists, 
Act define a 
person’s capacity 
specialists in non-verbal communication or other professionals. 
to make a 
Chapter 3 gives advice for communicating with people who have 
decision and how 
specifi c disabilities or cognitive problems.
should capacity 
be assessed?
4.25   Communication by simple muscle movements can show that 
somebody can communicate and may have capacity to make a 
decision.4 For example, a person might blink an eye or squeeze a hand 
to say ‘yes’ or ‘no’. In these cases, assessment must use the fi rst three 
points listed in paragraph 4.14, which are explained in more depth in 
paragraphs 4.16–4.22.
What other issues might affect capacity?
People with fluctuating or temporary capacity
4.26   Some people have fl uctuating capacity – they have a problem or 
condition that gets worse occasionally and affects their ability to make 
decisions. For example, someone who has manic depression may have 
a temporary manic phase which causes them to lack capacity to make 
fi nancial decisions, leading them to get into debt even though at other 
times they are perfectly able to manage their money. A person with a 
psychotic illness may have delusions that affect their capacity to make 
decisions at certain times but disappear at others. Temporary factors 
may also affect someone’s ability to make decisions. Examples include 
acute illness, severe pain, the effect of medication, or distress after 
a death or shock. More guidance on how to support someone with 
fl uctuating or temporary capacity to make a decision can be found in 
chapter 3, particularly paragraphs 3.12–3.16. More information about 
factors that may indicate that a person may regain or develop capacity 
in the future can be found at paragraph 5.28.
4.27   As in any other situation, an assessment must only examine a person’s 
capacity to make a particular decision when it needs to be made. 
It may be possible to put off the decision until the person has the 
capacity to make it (see also guidance on best interests in chapter 5).
4  This was demonstrated in the case Re AK (Adult Patient) (Medical Treatment: Consent) 
[2001] 1 FLR 129
49

Mental Capacity Act Code of Practice
Ongoing conditions that may affect capacity
4.28   Generally, capacity assessments should be related to a specifi c 
decision. But there may be people with an ongoing condition that 
affects their ability to make certain decisions or that may affect other 
decisions in their life. One decision on its own may make sense, but 
may give cause for concern when considered alongside others.
4.29   Again, it is important to review capacity from time to time, as people 
can improve their decision-making capabilities. In particular, someone 
with an ongoing condition may become able to make some, if not all, 
decisions. Some people (for example, people with learning disabilities) 
will learn new skills throughout their life, improving their capacity to 
make certain decisions. So assessments should be reviewed from time 
to time. Capacity should always be reviewed:
•  whenever a care plan is being developed or reviewed
•  at other relevant stages of the care planning process, and
•  as particular decisions need to be made.
4.30   It is important to acknowledge the difference between:
•  unwise decisions, which a person has the right to make (chapter 2, 
principle 3), and
•  decisions based on a lack of understanding of risks or inability to 
weigh up the information about a decision.
 
Information about decisions the person has made based on a lack of 
understanding of risks or inability to weigh up the information can form 
part of a capacity assessment – particularly if someone repeatedly 
makes decisions that put them at risk or result in harm to them or 
someone else.
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Mental Capacity Act Code of Practice
Scenario: Ongoing conditions
Chapter 4
Paul had an accident at work and suffered severe head injuries. He 
was awarded compensation to pay for care he will need throughout 
How does the 
his life as a result of his head injury. An application was made to the 
Act define a 
person’s capacity 
Court of Protection to consider how the award of compensation should 
to make a 
be managed, including whether to appoint a deputy to manage Paul’s 
decision and how 
fi nancial affairs. Paul objected as he believed he could manage his life 
should capacity 
and should be able to spend his money however he liked.
be assessed?
He wrote a list of what he intended to spend his money on. This included 
fully-staffed luxury properties and holiday villas, cars with chauffeurs, 
jewellery and various other items for himself and his family. But spending 
money on all these luxury items would not leave enough money to cover 
the costs of his care in future years.
The court judged that Paul had capacity to make day-to-day fi nancial 
decisions, but he did not understand why he had received compensation 
and what the money was supposed to be used for. Nor did he 
understand how buying luxuries now could affect his future care. The 
court therefore decided Paul lacked capacity to manage large amounts 
of money and appointed a deputy to make ongoing fi nancial decisions 
relating to his care. But it gave him access to enough funds to cover 
everyday needs and occasional treats.
What other legal tests of capacity are there?
4.31   The Act makes clear that the defi nition of ‘lack of capacity’ and the 
two-stage test for capacity set out in the Act are ‘for the purposes 
of this Act’. This means that the defi nition and test are to be used in 
situations covered by this Act. Schedule 6 of the Act also amends 
existing laws to ensure that the defi nition and test are used in other 
areas of law not covered directly by this Act.
 
For example, Schedule 6, paragraph 20 allows a person to be 
disqualifi ed from jury service if they lack the capacity (using this Act’s 
defi nition) to carry out a juror’s tasks.
4.32   There are several tests of capacity that have been produced following 
judgments in court cases (known as common law tests).5 These cover:
5  For details, see British Medical Association & Law Society, Assessment of Mental 
Capacity: Guidance for Doctors and Lawyers (Second edition) (London: BMJ Books, 2004)
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Mental Capacity Act Code of Practice
•  capacity to make a will6
•  capacity to make a gift7
•  capacity to enter into a contract8
•  capacity to litigate (take part in legal cases),9 and
•  capacity to enter into marriage.10
4.33   The Act’s new defi nition of capacity is in line with the existing common 
law tests, and the Act does not replace them. When cases come before 
the court on the above issues, judges can adopt the new defi nition if 
they think it is appropriate. The Act will apply to all other cases relating 
to fi nancial, healthcare or welfare decisions.
When should capacity be assessed?
4.34   Assessing capacity correctly is vitally important to everyone affected by 
the Act. Someone who is assessed as lacking capacity may be denied 
their right to make a specifi c decision – particularly if others think that 
the decision would not be in their best interests or could cause harm. 
Also, if a person lacks capacity to make specifi c decisions, that person 
might make decisions they do not really understand. Again, this could 
cause harm or put the person at risk. So it is important to carry out an 
assessment when a person’s capacity is in doubt. It is also important 
that the person who does an assessment can justify their conclusions. 
Many organisations will provide specifi c professional guidance for 
members of their profession.11
4.35   There are a number of reasons why people may question a person’s 
capacity to make a specifi c decision:
•  the person’s behaviour or circumstances cause doubt as to whether 
they have the capacity to make a decision
 6  Banks v Goodfellow (1870) LR 5 QB 549
 7  Re Beaney (deceased) [1978] 2 All ER 595
 8  Boughton v Knight (1873) LR 3 PD 64
 9  Masterman-Lister v Brutton & Co and Jewell & Home Counties Dairies [2003] 3 All ER 
162 (CA)
10  Sheffi eld City Council v E & S [2005] 1 FLR 965
11  See for example, British Medical Association & Law Society, Assessment of Mental 
Capacity: Guidance for Doctors and Lawyers (Second edition) (London: BMJ Books, 
2004); the Joint Royal Colleges Ambulance Service Liaison Committee Clinical Practice 
Guidelines (JRCALC, available online at www2.warwick.ac.uk/fac/med/research/hsri/
emergencycare/jrcalc_2006/clinical_guidelines_2006.pdf) and British Psychological 
Society, Guidelines on assessing capacity (BPS, 2006 available online at www.bps.org.uk)
52

Mental Capacity Act Code of Practice
•  somebody else says they are concerned about the person’s 
capacity, or
Chapter 4
•  the person has previously been diagnosed with an impairment or 
disturbance that affects the way their mind or brain works (see 
How does the 
paragraphs 4.11–4.12 above), and it has already been shown they 
Act define a 
lack capacity to make other decisions in their life.
person’s capacity 
to make a 
4.36   The starting assumption must be that the person has the capacity to 
decision and how 
should capacity 
make the specifi c decision. If, however, anyone thinks a person lacks 
be assessed?
capacity, it is important to then ask the following questions:
•  Does the person have all the relevant information they need to make 
the decision?
•  If they are making a decision that involves choosing between 
alternatives, do they have information on all the different options?
•  Would the person have a better understanding if information was 
explained or presented in another way?
•  Are there times of day when the person’s understanding is better?
•  Are there locations where they may feel more at ease?
•  Can the decision be put off until the circumstances are different and 
the person concerned may be able to make the decision?
•  Can anyone else help the person to make choices or express a view 
(for example, a family member or carer, an advocate or someone to 
help with communication)?
4.37   Chapter 3 describes ways to deal with these questions and suggest 
steps which may help people make their own decisions. If all practical 
and appropriate steps fail, an assessment will then be needed of the 
person’s capacity to make the decision that now needs to be made.
Who should assess capacity?
4.38   The person who assesses an individual’s capacity to make a decision 
will usually be the person who is directly concerned with the individual 
at the time the decision needs to be made. This means that different 
people will be involved in assessing someone’s capacity to make 
different decisions at different times.
 
For most day-to-day decisions, this will be the person caring for them 
at the time a decision must be made. For example, a care worker might 
need to assess if the person can agree to being bathed. Then a district 
nurse might assess if the person can consent to have a dressing 
changed.
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Mental Capacity Act Code of Practice
4.39  For acts of care or treatment (see chapter 6), the assessor must have a 
‘reasonable belief’ that the person lacks capacity to agree to the action 
or decision to be taken (see paragraphs 4.44–4.45 for a description of 
reasonable belief).
4.40  If a doctor or healthcare professional proposes treatment or an 
examination, they must assess the person’s capacity to consent. In 
settings such as a hospital, this can involve the multi-disciplinary team 
(a team of people from different professional backgrounds who share 
responsibility for a patient). But ultimately, it is up to the professional 
responsible for the person’s treatment to make sure that capacity has 
been assessed.
4.41  For a legal transaction (for example, making a will), a solicitor or legal 
practitioner must assess the client’s capacity to instruct them. They 
must assess whether the client has the capacity to satisfy any relevant 
legal test. In cases of doubt, they should get an opinion from a doctor 
or other professional expert.
4.42  More complex decisions are likely to need more formal assessments 
(see paragraph 4.54 below). A professional opinion on the person’s 
capacity might be necessary. This could be, for example, from 
a psychiatrist, psychologist, a speech and language therapist, 
occupational therapist or social worker. But the fi nal decision about 
a person’s capacity must be made by the person intending to make 
the decision or carry out the action on behalf of the person who lacks 
capacity – not the professional, who is there to advise.
4.43  Any assessor should have the skills and ability to communicate 
effectively with the person (see chapter 3). If necessary, they should get 
professional help to communicate with the person.
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Mental Capacity Act Code of Practice
Scenario: Getting help with assessing capacity
Chapter 4
Ms Dodd suffered brain damage in a road accident and is unable to 
speak. At fi rst, her family thought she was not able to make decisions. 
How does the 
But they soon discovered that she could choose by pointing at things, 
Act define a 
person’s capacity 
such as the clothes she wants to wear or the food she prefers. Her 
to make a 
behaviour also indicates that she enjoys attending a day centre, but 
decision and how 
she refuses to go swimming. Her carers have assessed her as having 
should capacity 
capacity to make these decisions.
be assessed?
Ms Dodd needs hospital treatment but she gets distressed when away 
from home. Her mother feels that Ms Dodd is refusing treatment by her 
behaviour, but her father thinks she lacks capacity to say no to treatment 
that could improve her condition.
The clinician who is proposing the treatment will have to assess Ms 
Dodd’s capacity to consent. He gets help from a member of staff at 
the day centre who knows Ms Dodd’s communication well and also 
discusses things with her parents. Over several meetings the clinician 
explains the treatment options to Ms Dodd with the help of the staff 
member. The fi nal decision about Ms Dodd’s capacity rests with the 
clinician, but he will need to use information from the staff member and 
others who know Ms Dodd well to make this assessment.
What is ‘reasonable belief’ of lack of capacity?
4.44  Carers (whether family carers or other carers) and care workers do not 
have to be experts in assessing capacity. But to have protection from 
liability when providing care or treatment (see chapter 6), they must 
have a ‘reasonable belief’ that the person they care for lacks capacity 
to make relevant decisions about their care or treatment (section 5 (1)). 
To have this reasonable belief, they must have taken ‘reasonable’ steps 
to establish that that the person lacks capacity to make a decision or 
consent to an act at the time the decision or consent is needed. They 
must also establish that the act or decision is in the person’s best 
interests (see chapter 5).
 
They do not usually need to follow formal processes, such as involving 
a professional to make an assessment. However, if somebody 
challenges their assessment (see paragraph 4.63 below), they must 
be able to describe the steps they have taken. They must also have 
objective reasons for believing the person lacks capacity to make the 
decision in question.
55

Mental Capacity Act Code of Practice
4.45   The steps that are accepted as ‘reasonable’ will depend on individual 
circumstances and the urgency of the decision. Professionals, who are 
qualifi ed in their particular fi eld, are normally expected to undertake 
a fuller assessment, refl ecting their higher degree of knowledge and 
experience, than family members or other carers who have no formal 
qualifi cations. See paragraph 4.36 for a list of points to consider when 
assessing someone’s capacity. The following may also be helpful:
•  Start by assuming the person has capacity to make the specifi c 
decision. Is there anything to prove otherwise?
•  Does the person have a previous diagnosis of disability or mental 
disorder? Does that condition now affect their capacity to make this 
decision? If there has been no previous diagnosis, it may be best to 
get a medical opinion.
•  Make every effort to communicate with the person to explain what is 
happening.
•  Make every effort to try to help the person make the decision in 
question.
•  See if there is a way to explain or present information about the 
decision in a way that makes it easier to understand. If the person 
has a choice, do they have information about all the options?
•  Can the decision be delayed to take time to help the person make 
the decision, or to give the person time to regain the capacity to 
make the decision for themselves?
•  Does the person understand what decision they need to make and 
why they need to make it?
•  Can they understand information about the decision? Can they 
retain it, use it and weigh it to make the decision?
•  Be aware that the fact that a person agrees with you or assents to 
what is proposed does not necessarily mean that they have capacity 
to make the decision.
What other factors might affect an assessment of capacity?
4.46  It is important to assess people when they are in the best state to make 
the decision, if possible. Whether this is possible will depend on the 
nature and urgency of the decision to be made. Many of the practical 
steps suggested in chapter 3 will help to create the best environment 
for assessing capacity. The assessor must then carry out the two 
stages of the test of capacity (see paragraphs 4.11–4.25 above).
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Mental Capacity Act Code of Practice
4.47  In many cases, it may be clear that the person has an impairment or 
disturbance in the functioning of their mind or brain which could affect 
Chapter 4
their ability to make a decision. For example, there might be a past 
diagnosis of a disability or mental disorder, or there may be signs that 
an illness is returning. Old assumptions about an illness or condition 
How does the 
should be reviewed. Sometimes an illness develops gradually (for 
Act define a 
person’s capacity 
example, dementia), and it is hard to know when it starts to affect 
to make a 
capacity. Anyone assessing someone’s capacity may need to ask for a 
decision and how 
medical opinion as to whether a person has an illness or condition that 
should capacity 
could affect their capacity to make a decision in this specifi c case.
be assessed?
Scenario: Getting a professional opinion
Mr Elliott is 87 years old and lives alone. He has poor short-term 
memory, and he often forgets to eat. He also sometimes neglects 
his personal hygiene. His daughter talks to him about the possibility 
of moving into residential care. She decides that he understands the 
reasons for her concerns as well as the risks of continuing to live alone 
and, having weighed these up, he has the capacity to decide to stay at 
home and accept the consequences.
Two months later, Mr Elliott has a fall and breaks his leg. While being 
treated in hospital, he becomes confused and depressed. He says 
he wants to go home, but the staff think that the deterioration in his 
mental health has affected his capacity to make this decision at this 
time. They think he cannot understand the consequences or weigh up 
the risks he faces if he goes home. They refer him to a specialist in old 
age psychiatry, who assesses whether his mental health is affecting his 
capacity to make this decision. The staff will then use the specialist’s 
opinion to help their assessment of Mr Elliott’s capacity.
4.48  Anyone assessing someone’s capacity must not assume that a person 
lacks capacity simply because they have a particular diagnosis or 
condition. There must be proof that the diagnosed illness or condition 
affects the ability to make a decision when it needs to be made. The 
person assessing capacity should ask the following questions:
•  Does the person have a general understanding of what decision they 
need to make and why they need to make it?
•  Do they understand the likely consequences of making, or not 
making, this decision?
57

Mental Capacity Act Code of Practice
•  Can they understand and process information about the decision? 
And can they use it to help them make a decision?
 
In borderline cases, or where there is doubt, the assessor must be 
able to show that it is more likely than not that the answer to these 
questions is ‘no’.
What practical steps should be taken when assessing 
capacity?

4.49  Anyone assessing someone’s capacity will need to decide which of 
these steps are relevant to their situation.
•  They should make sure that they understand the nature and effect 
of the decision to be made themselves. They may need access 
to relevant documents and background information (for example, 
details of the person’s fi nances if assessing capacity to manage 
affairs). See chapter 16 for details on access to information.
•  They may need other relevant information to support the assessment 
(for example, healthcare records or the views of staff involved in the 
person’s care).
•  Family members and close friends may be able to provide valuable 
background information (for example, the person’s past behaviour 
and abilities and the types of decisions they can currently make). But 
their personal views and wishes about what they would want for the 
person must not infl uence the assessment.
•  They should again explain to the person all the information relevant 
to the decision. The explanation must be in the most appropriate 
and effective form of communication for that person.
•  Check the person’s understanding after a few minutes. The person 
should be able to give a rough explanation of the information that 
was explained. There are different methods for people who use non-
verbal means of communication (for example, observing behaviour 
or their ability to recognise objects or pictures).
•  Avoid questions that need only a ‘yes’ or ‘no’ answer (for example, 
did you understand what I just said?). They are not enough to 
assess the person’s capacity to make a decision. But there may 
be no alternative in cases where there are major communication 
diffi culties. In these cases, check the response by asking questions 
again in a different way.
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Mental Capacity Act Code of Practice
•  Skills and behaviour do not necessarily refl ect the person’s capacity 
to make specifi c decisions. The fact that someone has good social 
Chapter 4
or language skills, polite behaviour or good manners doesn’t 
necessarily mean they understand the information or are able to 
weigh it up.
How does the 
Act define a 
•  Repeating these steps can help confi rm the result.
person’s capacity 
to make a 
4.50   For certain kinds of complex decisions (for example, making a will), 
decision and how 
should capacity 
there are specifi c legal tests (see paragraph 4.32 above) in addition to 
be assessed?
the two-stage test for capacity. In some cases, medical or psychometric 
tests may also be helpful tools (for example, for assessing cognitive 
skills) in assessing a person’s capacity to make particular decisions, but 
the relevant legal test of capacity must still be fulfi lled.
When should professionals be involved?
4.51  Anyone assessing someone’s capacity may need to get a professional 
opinion when assessing a person’s capacity to make complex or 
major decisions. In some cases this will simply involve contacting the 
person’s general practitioner (GP) or family doctor. If the person has 
a particular condition or disorder, it may be appropriate to contact 
a specialist (for example, consultant psychiatrist, psychologist or 
other professional with experience of caring for patients with that 
condition). A speech and language therapist might be able to help if 
there are communication diffi culties. In some cases, a multi-disciplinary 
approach is best. This means combining the skills and expertise of 
different professionals.
4.52   Professionals should never express an opinion without carrying out 
a proper examination and assessment of the person’s capacity to 
make the decision. They must apply the appropriate test of capacity. 
In some cases, they will need to meet the person more than once 
– particularly if the person has communication diffi culties. Professionals 
can get background information from a person’s family and carers. 
But the personal views of these people about what they want for the 
person who lacks capacity must not infl uence the outcome of that 
assessment.
4.53  Professional involvement might be needed if:
•  the decision that needs to be made is complicated or has serious 
consequences
•  an assessor concludes a person lacks capacity, and the person 
challenges the fi nding
59

Mental Capacity Act Code of Practice
•  family members, carers and/or professionals disagree about a 
person’s capacity
•  there is a confl ict of interest between the assessor and the person 
being assessed
•  the person being assessed is expressing different views to different 
people – they may be trying to please everyone or telling people 
what they think they want to hear
•  somebody might challenge the person’s capacity to make the 
decision – either at the time of the decision or later (for example, a 
family member might challenge a will after a person has died on the 
basis that the person lacked capacity when they made the will)
•  somebody has been accused of abusing a vulnerable adult who may 
lack capacity to make decisions that protect them
•  a person repeatedly makes decisions that put them at risk or could 
result in suffering or damage.
Scenario: Involving professional opinion
Ms Ledger is a young woman with learning disabilities and some autistic 
spectrum disorders. Recently she began a sexual relationship with a 
much older man, who is trying to persuade her to move in with him and 
come off the pill. There are rumours that he has been violent towards her 
and has taken her bankbook.
Ms Ledger boasts about the relationship to her friends. But she has 
admitted to her key worker that she is sometimes afraid of the man. 
Staff at her sheltered accommodation decide to make a referral under 
the local adult protection procedures. They arrange for a clinical 
psychologist to assess Ms Ledger’s understanding of the relationship 
and her capacity to consent to it.
4.54  In some cases, it may be a legal requirement, or good professional 
practice, to undertake a formal assessment of capacity. These cases 
include:
•  where a person’s capacity to sign a legal document (for example, a 
will), could later be challenged, in which case an expert should be 
asked for an opinion12
12  Kenward v Adams, The Times, 29 November 1975
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Mental Capacity Act Code of Practice
•  to establish whether a person who might be involved in a legal case 
needs the assistance of the Offi cial Solicitor or other litigation friend 
Chapter 4
(somebody to represent their views to a court and give instructions 
to their legal representative) and there is doubt about the person’s 
capacity to instruct a solicitor or take part in the case13
How does the 
Act define a 
•  whenever the Court of Protection has to decide if a person lacks 
person’s capacity 
capacity in a certain matter
to make a 
decision and how 
•  if the courts are required to make a decision about a person’s 
should capacity 
capacity in other legal proceedings14
be assessed?
•  if there may be legal consequences of a fi nding of capacity (for 
example, deciding on fi nancial compensation following a claim for 
personal injury).
Are assessment processes confidential?
4.55  People involved in assessing capacity will need to share information 
about a person’s circumstances. But there are ethical codes and laws 
that require professionals to keep personal information confi dential. 
As a general rule, professionals must ask their patients or clients if 
they can reveal information to somebody else – even close relatives. 
But sometimes information may be disclosed without the consent of 
the person who the information concerns (for example, to protect the 
person or prevent harm to other people).15
4.56  Anyone assessing someone’s capacity needs accurate information 
concerning the person being assessed that is relevant to the decision 
the person has to make. So professionals should, where possible, 
make relevant information available. They should make every effort 
to get the person’s permission to reveal relevant information. They 
should give a full explanation of why this is necessary, and they should 
tell the person about the risks and consequences of revealing, and 
not revealing information. If the person is unable to give permission, 
the professional might still be allowed to provide information that will 
help make an accurate assessment of the person’s capacity to make 
the specifi c decision. Chapter 16 has more detail on how to access 
information.
13  Civil Procedure Rules 1998, r 21.1
14  Masterman-Lister v Brutton & Co and Jewell & Home Counties Dairies [2002] EWCA Civ 
1889, CA at 54
15  For example, in the circumstances discussed in W v Egdell and others [1990] 1 All ER 835 
at 848; S v Plymouth City Council and C, [2002] EWCA Civ 388) at 49
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Mental Capacity Act Code of Practice
What if someone refuses to be assessed?
4.57  There may be circumstances in which a person whose capacity is in 
doubt refuses to undergo an assessment of capacity or refuses to be 
examined by a doctor or other professional. In these circumstances, 
it might help to explain to someone refusing an assessment why it 
is needed and what the consequences of refusal are. But threats 
or attempts to force the person to agree to an assessment are not 
acceptable.
4.58  If the person lacks capacity to agree or refuse, the assessment can 
normally go ahead, as long as the person does not object to the 
assessment, and it is in their best interests (see chapter 5).
4.59  Nobody can be forced to undergo an assessment of capacity. If 
someone refuses to open the door to their home, it cannot be forced. 
If there are serious worries about the person’s mental health, it may 
be possible to get a warrant to force entry and assess the person for 
treatment in hospital – but the situation must meet the requirements 
of the Mental Health Act 1983 (section 135). But simply refusing 
an assessment of capacity is in no way suffi cient grounds for an 
assessment under the Mental Health Act 1983 (see chapter 13).
Who should keep a record of assessments?
4.60   Assessments of capacity to take day-to-day decisions or consent 
to care require no formal assessment procedures or recorded 
documentation. Paragraphs 4.44–4.45 above explain the steps to take 
to reach a ‘reasonable belief’ that someone lacks capacity to make a 
particular decision. It is good practice for paid care workers to keep a 
record of the steps they take when caring for the person concerned.
Professional records
4.61  It is good practice for professionals to carry out a proper assessment 
of a person’s capacity to make particular decisions and to record the 
fi ndings in the relevant professional records.
•  A doctor or healthcare professional proposing treatment should 
carry out an assessment of the person’s capacity to consent (with a 
multi-disciplinary team, if appropriate) and record it in the patient’s 
clinical notes.
•  Solicitors should assess a client’s capacity to give instructions 
or carry out a legal transaction (obtaining a medical or other 
professional opinion, if necessary) and record it on the client’s fi le.
62

Mental Capacity Act Code of Practice
•  An assessment of a person’s capacity to consent or agree to the 
provision of services will be part of the care planning processes for 
Chapter 4
health and social care needs, and should be recorded in the relevant 
documentation. This includes:
How does the 
•  Person Centred Planning for people with learning disabilities
Act define a 
•  the Care Programme Approach for people with mental illness
person’s capacity 
to make a 
•  the Single Assessment Process for older people in England, and
decision and how 
should capacity 
• the Unifi ed Assessment Process in Wales.
be assessed?
Formal reports or certificates of capacity
4.62  In some cases, a more detailed report or certifi cate of capacity may be 
required, for example,
•  for use in court or other legal processes
•  as required by Regulations, Rules or Orders made under the Act.
How can someone challenge a finding of lack of capacity?
4.63  There are likely to be occasions when someone may wish to challenge 
the results of an assessment of capacity. The fi rst step is to raise 
the matter with the person who carried out the assessment. If the 
challenge comes from the individual who is said to lack capacity, 
they might need support from family, friends or an advocate. Ask the 
assessor to:
•  give reasons why they believe the person lacks capacity to make the 
decision, and
•  provide objective evidence to support that belief.
4.64  The assessor must show they have applied the principles of the Mental 
Capacity Act (see chapter 2). Attorneys, deputies and professionals will 
need to show that they have also followed guidance in this chapter.
4.65  It might be possible to get a second opinion from an independent 
professional or another expert in assessing capacity. Chapter 15 
has other suggestions for dealing with disagreements. But if a 
disagreement cannot be resolved, the person who is challenging the 
assessment may be able to apply to the Court of Protection. The Court 
of Protection can rule on whether a person has capacity to make the 
decision covered by the assessment (see chapter 8).
63

5 What does the Act mean when it 
talks about ‘best interests’?
One of the key principles of the Act is that any act done for, or any decision 
made on behalf of a person who lacks capacity must be done, or made, in 
that person’s best interests. That is the same whether the person making 
the decision or acting is a family carer, a paid care worker, an attorney, a
court-appointed deputy, or a healthcare professional, and whether the 
decision is a minor issue – like what to wear – or a major issue, like whether 
to provide particular healthcare.
As long as these acts or decisions are in the best interests of the person who 
lacks capacity to make the decision for themselves, or to consent to acts 
concerned with their care or treatment, then the decision-maker or carer will 
be protected from liability.
There are exceptions to this, including circumstances where a person has 
made an advance decision to refuse treatment (see chapter 9) and, in specifi c 
circumstances, the involvement of a person who lacks capacity in research 
(see chapter 11). But otherwise the underpinning principle of the Act is that 
all acts and decisions should be made in the best interests of the person 
without capacity.
Working out what is in someone else’s best interests may be diffi cult, and the 
Act requires people to follow certain steps to help them work out whether 
a particular act or decision is in a person’s best interests. In some cases, 
there may be disagreement about what someone’s best interests really are. 
As long as the person who acts or makes the decision has followed the 
steps to establish whether a person has capacity, and done everything they 
reasonably can to work out what someone’s best interests are, the law should 
protect them.
This chapter explains what the Act means by ‘best interests’ and what things 
should be considered when trying to work out what is in someone’s best 
interests. It also highlights some of the diffi culties that might come up in 
working out what the best interests of a person who lacks capacity to make 
the decision actually are.
In this chapter, as throughout the Code, a person’s capacity (or lack of 
capacity) refers specifi cally to their capacity to make a particular decision 
at the time it needs to be made.
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Mental Capacity Act Code of Practice
Quick summary
Chapter 5
A person trying to work out the best interests of a person who lacks capacity 
to make a particular decision (‘lacks capacity’) should:
What does the 
Encourage participation
Act mean when 
it talks about 
‘best interests’?
•  do whatever is possible to permit and encourage the person to take part, 
or to improve their ability to take part, in making the decision
Identify all relevant circumstances
•  try to identify all the things that the person who lacks capacity would take 
into account if they were making the decision or acting for themselves
Find out the person’s views
•  try to fi nd out the views of the person who lacks capacity, including:
 – 
 
the person’s past and present wishes and feelings – these may have 
been expressed verbally, in writing or through behaviour or habits.
 – 
 
any beliefs and values (e.g. religious, cultural, moral or political) that 
would be likely to infl uence the decision in question.
 – 
 
any other factors the person themselves would be likely to consider if 
they were making the decision or acting for themselves.
Avoid discrimination
•  not make assumptions about someone’s best interests simply on the basis 
of the person’s age, appearance, condition or behaviour.
Assess whether the person might regain capacity
•  consider whether the person is likely to regain capacity (e.g. after receiving 
medical treatment). If so, can the decision wait until then?
If the decision concerns life-sustaining treatment
•  not be motivated in any way by a desire to bring about the person’s death. 
They should not make assumptions about the person’s quality of life.
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Mental Capacity Act Code of Practice
Consult others
•  if it is practical and appropriate to do so, consult other people for their 
views about the person’s best interests and to see if they have any 
information about the person’s wishes and feelings, beliefs and values. In 
particular, try to consult:
 – 
 
anyone previously named by the person as someone to be consulted 
on either the decision in question or on similar issues
 – 
 
anyone engaged in caring for the person
 – 
 
close relatives, friends or others who take an interest in the 
person’s welfare
 – 
 
any attorney appointed under a Lasting Power of Attorney or 
Enduring Power of Attorney made by the person
 – 
 
any deputy appointed by the Court of Protection to make decisions 
for the person.
•  For decisions about major medical treatment or where the person should 
live and where there is no-one who fi ts into any of the above categories, 
an Independent Mental Capacity Advocate (IMCA) must be consulted. 
(See chapter 10 for more information about IMCAs.)
•  When consulting, remember that the person who lacks the capacity to 
make the decision or act for themselves still has a right to keep their 
affairs private – so it would not be right to share every piece of information 
with everyone.
Avoid restricting the person’s rights
•  see if there are other options that may be less restrictive of the 
person’s rights.
Take all of this into account
•  weigh up all of these factors in order to work out what is in the person’s 
best interests.
What is the best interests principle and who does it apply to?
5.1  
The best interests principle underpins the Mental Capacity Act. It is set 
out in section 1(5) of the Act.
 
‘An act done, or decision made, under this Act for or on behalf of a 
person who lacks capacity must be done, or made, in his best interests.’
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Mental Capacity Act Code of Practice
 
The concept has been developed by the courts in cases relating to 
people who lack capacity to make specifi c decisions for themselves, 
Chapter 5
mainly decisions concerned with the provision of medical treatment or 
social care.
What does the 
5.2  
This principle covers all aspects of fi nancial, personal welfare and 
Act mean when 
it talks about 
healthcare decision-making and actions. It applies to anyone making 
‘best interests’?
decisions or acting under the provisions of the Act, including:
•  family carers, other carers and care workers
•  healthcare and social care staff
•  attorneys appointed under a Lasting Power of Attorney or registered 
Enduring Power of Attorney
•  deputies appointed by the court to make decisions on behalf of 
someone who lacks capacity, and
•  the Court of Protection.
5.3  
However, as chapter 2 explained, the Act’s fi rst key principle is that 
people must be assumed to have capacity to make a decision or act 
for themselves unless it is established that they lack it. That means 
that working out a person’s best interests is only relevant when that 
person has been assessed as lacking, or is reasonably believed to lack, 
capacity to make the decision in question or give consent to an act 
being done.
 
People with capacity are able to decide for themselves what they 
want to do. When they do this, they might choose an option that 
other people don’t think is in their best interests. That is their choice 
and does not, in itself, mean that they lack capacity to make those 
decisions.
Exceptions to the best interests principle
5.4  
There are two circumstances when the best interests principle will not 
apply. The fi rst is where someone has previously made an advance 
decision to refuse medical treatment while they had the capacity to 
do so. Their advance decision should be respected when they lack 
capacity, even if others think that the decision to refuse treatment is 
not in their best interests (guidance on advance decisions is given in 
chapter 9).
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Mental Capacity Act Code of Practice
 
The second concerns the involvement in research, in certain 
circumstances, of someone lacking capacity to consent (see 
chapter 11).
What does the Act mean by best interests?
5.5 
The term ‘best interests’ is not actually defi ned in the Act. This is 
because so many different types of decisions and actions are covered 
by the Act, and so many different people and circumstances are 
affected by it.
5.6 
Section 4 of the Act explains how to work out the best interests of a 
person who lacks capacity to make a decision at the time it needs to 
be made. This section sets out a checklist of common factors that 
must always be considered by anyone who needs to decide what is 
in the best interests of a person who lacks capacity in any particular 
situation. This checklist is only the starting point: in many cases, extra 
factors will need to be considered. 
5.7  
When working out what is in the best interests of the person who lacks 
capacity to make a decision or act for themselves, decision-makers 
must take into account all relevant factors that it would be reasonable 
to consider, not just those that they think are important. They must not 
act or make a decision based on what they would want to do if they 
were the person who lacked capacity.
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Mental Capacity Act Code of Practice
Scenario: Whose best interests?
Chapter 5
Pedro, a young man with a severe learning disability, lives in a care 
home. He has dental problems which cause him a lot of pain, but 
What does the 
Act mean when 
refuses to open his mouth for his teeth to be cleaned.
it talks about 
‘best interests’?
The staff suggest that it would be a good idea to give Pedro an 
occasional general anaesthetic so that a dentist can clean his teeth 
and fill any cavities. His mother is worried about the effects of an 
anaesthetic, but she hates to see him distressed and suggests instead 
that he should be given strong painkillers when needed.
While the views of Pedro’s mother and carers are important in working 
out what course of action would be in his best interests, the decision 
must not be based on what would be less stressful for them. Instead, it 
must focus on Pedro’s best interests.
Having talked to others, the dentist tries to find ways of involving Pedro 
in the decision, with the help of his key worker and an advocate, to try 
to find out the cause and location of the problem and to explain to him 
that they are trying to stop the pain. The dentist tries to find out if any 
other forms of dental care would be better, such as a mouthwash or 
dental gum.
The dentist concludes that it would be in Pedro’s best interests for:
•  a proper investigation to be carried out under anaesthetic so that 
immediate treatment can be provided
•  options for his future dental care to be reviewed by the care team, 
involving Pedro as far as possible.
Who can be a decision-maker?
5.8 
Under the Act, many different people may be required to make 
decisions or act on behalf of someone who lacks capacity to make 
decisions for themselves. The person making the decision is referred 
to throughout this chapter, and in other parts of the Code, as the 
‘decision-maker’, and it is the decision-maker’s responsibility to 
work out what would be in the best interests of the person who 
lacks capacity.
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Mental Capacity Act Code of Practice
•  For most day-to-day actions or decisions, the decision-maker will be 
the carer most directly involved with the person at the time.
•  Where the decision involves the provision of medical treatment, the 
doctor or other member of healthcare staff responsible for carrying 
out the particular treatment or procedure is the decision-maker.
•  Where nursing or paid care is provided, the nurse or paid carer will 
be the decision-maker.
•  If a Lasting Power of Attorney (or Enduring Power of Attorney) has 
been made and registered, or a deputy has been appointed under 
a court order, the attorney or deputy will be the decision-maker, for 
decisions within the scope of their authority.
5.9 
What this means is that a range of different decision-makers may be 
involved with a person who lacks capacity to make different decisions.
5.10  In some cases, the same person may make different types of decision 
for someone who lacks capacity to make decisions for themselves. 
For instance, a family carer may carry out certain acts in caring for 
the person on a day-to-day basis, but if they are also an attorney, 
appointed under a Lasting Power of Attorney (LPA), they may also 
make specifi c decisions concerning the person’s property and affairs or 
their personal welfare (depending on what decisions the LPA has been 
set up to cover).
5.11   There are also times when a joint decision might be made by a number 
of people. For example, when a care plan for a person who lacks 
capacity to make relevant decisions is being put together, different 
healthcare or social care staff might be involved in making decisions or 
recommendations about the person’s care package. Sometimes these 
decisions will be made by a team of healthcare or social care staff as a 
whole. At other times, the decision will be made by a specifi c individual 
within the team. A different member of the team may then implement 
that decision, based on what the team has worked out to be the 
person’s best interests.
5.12   No matter who is making the decision, the most important thing is 
that the decision-maker tries to work out what would be in the best 
interests of the person who lacks capacity.
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Mental Capacity Act Code of Practice
Scenario: Coming to a joint decision
Chapter 5
Jack, a young man with a brain injury, lacks capacity to agree to a 
rehabilitation programme designed to improve his condition. But the 
What does the 
Act mean when 
healthcare and social care staff who are looking after him believe that he 
it talks about 
clearly needs the programme, and have obtained the necessary funding 
‘best interests’?
from the Primary Care Trust.
However, Jack’s family want to take him home from hospital as they 
believe they can provide better care for him at home.
A ‘best interests’ case conference is held, involving Jack, his parents 
and other family members and the relevant professionals, in order to 
decide what course of action would be in the Jack’s best interests.
A plan is developed to enable Jack to live at home, but attend the day 
hospital every weekday. Jack seems happy with the proposals and both 
the family carers and the healthcare and social care staff are satisfied 
that the plan is in his best interests.
What must be taken into account when trying to work out 
someone’s best interests?

5.13   Because every case – and every decision – is different, the law can’t 
set out all the factors that will need to be taken into account in working 
out someone’s best interests. But section 4 of the Act sets out some 
common factors that must always be considered when trying to work 
out someone’s best interests. These factors are summarised in the 
checklist here:
•  Working out what is in someone’s best interests cannot be based 
simply on someone’s age, appearance, condition or behaviour. (see 
paragraphs 5.16–5.17).
•  All relevant circumstances should be considered when working out 
someone’s best interests (paragraphs 5.18–5.20).
•  Every effort should be made to encourage and enable the person 
who lacks capacity to take part in making the decision (paragraphs 
5.21–5.24).
•  If there is a chance that the person will regain the capacity to make 
a particular decision, then it may be possible to put off the decision 
until later if it is not urgent (paragraphs 5.25–5.28).
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Mental Capacity Act Code of Practice
•  Special considerations apply to decisions about life-sustaining 
treatment (paragraphs 5.29–5.36).
•  The person’s past and present wishes and feelings, beliefs and 
values should be taken into account (paragraphs 5.37–5.48).
•  The views of other people who are close to the person who lacks 
capacity should be considered, as well as the views of an attorney 
or deputy (paragraphs 5.49–5.55).
 
It’s important not to take shortcuts in working out best interests, and 
a proper and objective assessment must be carried out on every 
occasion. If the decision is urgent, there may not be time to examine 
all possible factors, but the decision must still be made in the best 
interests of the person who lacks capacity. Not all the factors in the 
checklist will be relevant to all types of decisions or actions, and in 
many cases other factors will have to be considered as well, even 
though some of them may then not be found to be relevant.
5.14   What is in a person’s best interests may well change over time. This 
means that even where similar actions need to be taken repeatedly 
in connection with the person’s care or treatment, the person’s best 
interests should be regularly reviewed.
5.15   Any staff involved in the care of a person who lacks capacity should 
make sure a record is kept of the process of working out the best 
interests of that person for each relevant decision, setting out:
•  how the decision about the person’s best interests was reached
•  what the reasons for reaching the decision were
•  who was consulted to help work out best interests, and
•  what particular factors were taken into account.
 
This record should remain on the person’s fi le.
 
For major decisions based on the best interests of a person who lacks 
capacity, it may also be useful for family and other carers to keep a 
similar kind of record.
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Mental Capacity Act Code of Practice
What safeguards does the Act provide around working out 
someone’s best interests?

Chapter 5
5.16   Section 4(1) states that anyone working out someone’s best interests 
What does the 
must not make unjustifi ed assumptions about what their best interests 
Act mean when 
might be simply on the basis of the person’s age, appearance, 
it talks about 
condition or any aspect of their behaviour. In this way, the Act ensures 
‘best interests’?
that people who lack capacity to make decisions for themselves 
are not subject to discrimination or treated any less favourably than 
anyone else.
5.17   ‘Appearance’ is a broad term and refers to all aspects of physical 
appearance, including skin colour, mode of dress and any visible 
medical problems, disfi guring scars or other disabilities. A person’s 
‘condition’ also covers a range of factors including physical disabilities, 
learning diffi culties or disabilities, age-related illness or temporary 
conditions (such as drunkenness or unconsciousness). ‘Behaviour’ 
refers to behaviour that might seem unusual to others, such as talking 
too loudly or laughing inappropriately.
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Mental Capacity Act Code of Practice
Scenario: Following the checklist
Martina, an elderly woman with dementia, is beginning to neglect her 
appearance and personal hygiene and has several times been found 
wandering in the street unable to fi nd her way home. Her care workers 
are concerned that Martina no longer has capacity to make appropriate 
decisions relating to her daily care. Her daughter is her personal welfare 
attorney and believes the time has come to act under the Lasting Power 
of Attorney (LPA).
She assumes it would be best for Martina to move into a care home, 
since the staff would be able to help her wash and dress smartly and 
prevent her from wandering.
However, it cannot be assumed simply on the basis of her age, condition, 
appearance or behaviour
 either that Martina lacks capacity to make such 
a decision or that such a move would be in her best interests.
Instead, steps must be taken to assess her capacity. If it is then agreed 
that Martina lacks the capacity to make this decision, all the relevant 
factors in the best interests’ checklist must be considered to try to work 
out what her best interests would be.
Her daughter must therefore consider:
•  Martina’s past and present wishes and feelings
•  the views of the people involved in her care
•  any alternative ways of meeting her care needs effectively which might 
be less restrictive of Martina’s rights and freedoms, such as increased 
provision of home care or attendance at a day centre.
By following this process, Martina’s daughter can then take decisions 
on behalf of her mother and in her best interests, when her mother lacks 
the capacity to make them herself, on any matters that fall under the 
authority of the LPA.
How does a decision-maker work out what ‘all relevant 
circumstances’ are?

5.18   When trying to work out someone’s best interests, the decision-maker 
should try to identify all the issues that would be most relevant to the 
individual who lacks capacity and to the particular decision, as well as 
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Mental Capacity Act Code of Practice
those in the ‘checklist’. Clearly, it is not always possible or practical 
to investigate in depth every issue which may have some relevance to 
Chapter 5
the person who lacks capacity or the decision in question. So relevant 
circumstances are defi ned in section 4(11) of the Act as those:
What does the 
Act mean when 
 
‘(a) of which the person making the determination is aware, and
it talks about 
 
(b) which it would be reasonable to regard as relevant.’
‘best interests’?
5.19   The relevant circumstances will of course vary from case to case. For 
example, when making a decision about major medical treatment, 
a doctor would need to consider the clinical needs of the patient, 
the potential benefi ts and burdens of the treatment on the person’s 
health and life expectancy and any other factors relevant to making a 
professional judgement.16 But it would not be reasonable to consider 
issues such as life expectancy when working out whether it would be in 
someone’s best interests to be given medication for a minor problem.
5.20   Financial decisions are another area where the relevant circumstances 
will vary. For example, if a person had received a substantial sum of 
money as compensation for an accident resulting in brain injury, the 
decision-maker would have to consider a wide range of circumstances 
when making decisions about how the money is spent or invested, 
such as:
•  whether the person’s condition is likely to change
•  whether the person needs professional care, and
•  whether the person needs to live somewhere else to make it easier 
for them.
 
These kinds of issues can only be decided on a case-by-case basis.
How should the person who lacks capacity be involved in 
working out their best interests?

5.21   Wherever possible, the person who lacks capacity to make a decision 
should still be involved in the decision-making process (section 4(4)).
5.22   Even if the person lacks capacity to make the decision, they may have 
views on matters affecting the decision, and on what outcome would 
be preferred. Their involvement can help work out what would be in 
their best interests.
16  An Hospital NHS Trust v S [2003] EWHC 365 (Fam), paragraph 47
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Mental Capacity Act Code of Practice
5.23   The decision-maker should make sure that all practical means are used 
to enable and encourage the person to participate as fully as possible 
in the decision-making process and any action taken as a result, or to 
help the person improve their ability to participate.
5.24   Consulting the person who lacks capacity will involve taking time to 
explain what is happening and why a decision needs to be made. 
Chapter 3 includes a number of practical steps to assist and enable 
decision-making which may be also be helpful in encouraging greater 
participation. These include:
•  using simple language and/or illustrations or photographs to help 
the person understand the options
•  asking them about the decision at a time and location where the 
person feels most relaxed and at ease
•  breaking the information down into easy-to-understand points
•  using specialist interpreters or signers to communicate with the 
person.
 
This may mean that other people are required to communicate with 
the person to establish their views. For example, a trusted relative or 
friend, a full-time carer or an advocate may be able to help the person 
to express wishes or aspirations or to indicate a preference between 
different options.
 
More information on all of these steps can be found in chapter 3.
Scenario: Involving someone in working out their best interests
The parents of Amy, a young woman with learning difficulties, are going 
through a divorce and are arguing about who should continue to care 
for their daughter. Though she cannot understand what is happening, 
attempts are made to see if Amy can give some indication of where she 
would prefer to live.
An advocate is appointed to work with Amy to help her understand the 
situation and to find out her likes and dislikes and matters which are 
important to her. With the advocate’s help, Amy is able to participate in 
decisions about her future care.
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Mental Capacity Act Code of Practice
How do the chances of someone regaining and developing 
capacity affect working out what is in their best interests?

Chapter 5
5.25   There are some situations where decisions may be deferred, if 
What does the 
someone who currently lacks capacity may regain the capacity to 
Act mean when 
make the decision for themselves. Section 4(3) of the Act requires the 
it talks about 
decision-maker to consider:
‘best interests’?
•  whether the individual concerned is likely to regain the capacity to 
make that particular decision in the future, and
•  if so, when that is likely to be.
 
It may then be possible to put off the decision until the person can 
make it for themselves.
5.26   In emergency situations – such as when urgent medical treatment is 
needed – it may not be possible to wait to see if the person may regain 
capacity so they can decide for themselves whether or not to have the 
urgent treatment.
5.27   Where a person currently lacks capacity to make a decision relating to 
their day-to-day care, the person may – over time and with the right 
support – be able to develop the skills to do so. Though others may 
need to make the decision on the person’s behalf at the moment, all 
possible support should be given to that person to enable them to 
develop the skills so that they can make the decision for themselves in 
the future.
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Mental Capacity Act Code of Practice
Scenario: Taking a short-term decision for someone who may 
regain capacity

Mr Fowler has suffered a stroke leaving him severely disabled and 
unable to speak. Within days, he has shown signs of improvement, 
so with intensive treatment there is hope he will recover over time. 
But at present both his wife and the hospital staff find it difficult to 
communicate with him and have been unable to find out his wishes.
He has always looked after the family finances, so Mrs Fowler suddenly 
discovers she has no access to his personal bank account to provide 
the family with money to live on or pay the bills. Because the decision 
can’t be put off while efforts are made to find effective means of 
communicating with Mr Fowler, an application is made to the Court of 
Protection for an order that allows Mrs Fowler to access Mr Fowler’s 
money.
The decision about longer-term arrangements, on the other hand, can 
be delayed until alternative methods of communication have been tried 
and the extent of Mr Fowler’s recovery is known.
5.28   Some factors which may indicate that a person may regain or develop 
capacity in the future are:
•  the cause of the lack of capacity can be treated, either by 
medication or some other form of treatment or therapy
•  the lack of capacity is likely to decrease in time (for example, where 
it is caused by the effects of medication or alcohol, or following a 
sudden shock)
•  a person with learning disabilities may learn new skills or be subject 
to new experiences which increase their understanding and ability to 
make certain decisions
•  the person may have a condition which causes capacity to come 
and go at various times (such as some forms of mental illness) so 
it may be possible to arrange for the decision to be made during a 
time when they do have capacity
•  a person previously unable to communicate may learn a new form of 
communication (see chapter 3).
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Mental Capacity Act Code of Practice
How should someone’s best interests be worked out when 
making decisions about life-sustaining treatment?

Chapter 5
5.29   A special factor in the checklist applies to decisions about treatment 
What does the 
which is necessary to keep the person alive (‘life-sustaining treatment’) 
Act mean when 
and this is set out in section 4(5) of the Act. The fundamental rule is 
it talks about 
that anyone who is deciding whether or not life-sustaining treatment is 
‘best interests’?
in the best interests of someone who lacks capacity to consent to or 
refuse such treatment must not be motivated by a desire to bring about 
the person’s death.
5.30  Whether a treatment is ‘life-sustaining’ depends not only on the type 
of treatment, but also on the particular circumstances in which it may 
be prescribed. For example, in some situations giving antibiotics may 
be life-sustaining, whereas in other circumstances antibiotics are 
used to treat a non-life-threatening condition. It is up to the doctor 
or healthcare professional providing treatment to assess whether the 
treatment is life-sustaining in each particular situation.
5.31   All reasonable steps which are in the person’s best interests should 
be taken to prolong their life. There will be a limited number of cases 
where treatment is futile, overly burdensome to the patient or where 
there is no prospect of recovery. In circumstances such as these, it 
may be that an assessment of best interests leads to the conclusion 
that it would be in the best interests of the patient to withdraw or 
withhold life-sustaining treatment, even if this may result in the person’s 
death. The decision-maker must make a decision based on the best 
interests of the person who lacks capacity. They must not be motivated 
by a desire to bring about the person’s death for whatever reason, 
even if this is from a sense of compassion. Healthcare and social care 
staff should also refer to relevant professional guidance when making 
decisions regarding life-sustaining treatment.
5.32  As with all decisions, before deciding to withdraw or withhold 
life-sustaining treatment, the decision-maker must consider the 
range of treatment options available to work out what would be in the 
person’s best interests. All the factors in the best interests checklist 
should be considered, and in particular, the decision-maker should 
consider any statements that the person has previously made about 
their wishes and feelings about life-sustaining treatment.
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Mental Capacity Act Code of Practice
5.33  Importantly, section 4(5) cannot be interpreted to mean that doctors are 
under an obligation to provide, or to continue to provide, life-sustaining 
treatment where that treatment is not in the best interests of the 
person, even where the person’s death is foreseen. Doctors must apply 
the best interests’ checklist and use their professional skills to decide 
whether life-sustaining treatment is in the person’s best interests. If the 
doctor’s assessment is disputed, and there is no other way of resolving 
the dispute, ultimately the Court of Protection may be asked to decide 
what is in the person’s best interests.
5.34   Where a person has made a written statement in advance that requests 
particular medical treatments, such as artifi cial nutrition and hydration 
(ANH), these requests should be taken into account by the treating 
doctor in the same way as requests made by a patient who has the 
capacity to make such decisions. Like anyone else involved in making 
this decision, the doctor must weigh written statements alongside all 
other relevant factors to decide whether it is in the best interests of the 
patient to provide or continue life-sustaining treatment.
5.35   If someone has made an advance decision to refuse life-sustaining 
treatment, specifi c rules apply. More information about these can be 
found in chapter 9 and in paragraph 5.45 below.
5.36   As mentioned in paragraph 5.33 above, where there is any doubt about 
the patient’s best interests, an application should be made to the Court 
of Protection for a decision as to whether withholding or withdrawing 
life-sustaining treatment is in the patient’s best interests.
How do a person’s wishes and feelings, beliefs and values 
affect working out what is in their best interests?

5.37   Section 4(6) of the Act requires the decision-maker to consider, as far 
as they are ‘reasonably ascertainable’:
 
       ‘(a) the person’s past and present wishes and feelings (and in 
particular, any relevant written statements made by him when he 
had capacity),
 
       (b) the beliefs and values that would be likely to infl uence his 
decision if he had capacity, and
 
       (c) the other factors that he would be likely to consider if he were 
able to do so.’
 
Paragraphs 5.38–5.48 below give further guidance on each of 
these factors.
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Mental Capacity Act Code of Practice
5.38   In setting out the requirements for working out a person’s ‘best 
interests’, section 4 of the Act puts the person who lacks capacity 
Chapter 5
at the centre of the decision to be made. Even if they cannot make 
the decision, their wishes and feelings, beliefs and values should 
be taken fully into account – whether expressed in the past or now. 
What does the 
Act mean when 
But their wishes and feelings, beliefs and values will not necessarily 
it talks about 
be the deciding factor in working out their best interests. Any such 
‘best interests’?
assessment must consider past and current wishes and feelings, 
beliefs and values alongside all other factors, but the fi nal decision 
must be based entirely on what is in the person’s best interests.
Scenario: Considering wishes and feelings as part of best interests
Andre, a young man with severe learning disabilities who does not use 
any formal system of communication, cuts his leg while outdoors. There 
is some earth in the wound. A doctor wants to give him a tetanus jab, but 
Andre appears scared of the needle and pushes it away. Assessments 
have shown that he is unable to understand the risk of infection following 
his injury, or the consequences of rejecting the injection.
The doctor decides that it is in the Andre’s best interests to give the 
vaccination. She asks a nurse to comfort Andre, and if necessary, 
restrain him while she gives the injection. She has objective reasons for 
believing she is acting in Andre’s best interests, and for believing that 
Andre lacks capacity to make the decision for himself. So she should be 
protected from liability under section 5 of the Act (see chapter 6).
What is ‘reasonably ascertainable’?
5.39   How much someone can learn about a person’s past and present 
views will depend on circumstances and the time available. 
‘Reasonably ascertainable’ means considering all possible information 
in the time available. What is available in an emergency will be different 
to what is available in a non-emergency. But even in an emergency, 
there may still be an opportunity to try to communicate with the person 
or his friends, family or carers (see chapter 3 for guidance on helping 
communication).
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Mental Capacity Act Code of Practice
What role do a person’s past and present wishes and feelings play?
5.40   People who cannot express their current wishes and feelings in words 
may express themselves through their behaviour. Expressions of 
pleasure or distress and emotional responses will also be relevant in 
working out what is in their best interests. It is also important to be sure 
that other people have not infl uenced a person’s views. An advocate 
could help the person make choices and express their views.
5.41  The person may have held strong views in the past which could have a 
bearing on the decision now to be made. All reasonable efforts must be 
made to fi nd out whether the person has expressed views in the past 
that will shape the decision to be made. This could have been through 
verbal communication, writing, behaviour or habits, or recorded in any 
other way (for example, home videos or audiotapes).
5.42   Section 4(6)(a) places special emphasis on written statements the 
person might have made before losing capacity. These could provide 
a lot of information about a person’s wishes. For example, these 
statements could include information about the type of medical 
treatment they would want in the case of future illness, where they 
would prefer to live, or how they wish to be cared for.
5.43   The decision-maker should consider written statements carefully. If 
their decision does not follow something a person has put in writing, 
they must record the reasons why. They should be able to justify their 
reasons if someone challenges their decision.
5.44  A doctor should take written statements made by a person before 
losing capacity which request specifi c treatments as seriously as 
those made by people who currently have capacity to make treatment 
decisions. But they would not have to follow a written request if they 
think the specifi c treatment would be clinically unnecessary or 
not appropriate for the person’s condition, so not in the person’s 
best interests. 
5.45   It is important to note the distinction between a written statement 
expressing treatment preferences and a statement which constitutes 
an advance decision to refuse treatment. This is covered by section 24 
of the Act, and it has a different status in law. Doctors cannot ignore a 
written statement that is a valid advance decision to refuse treatment. 
An advance decision to refuse treatment must be followed if it meets 
the Act’s requirements and applies to the person’s circumstances. In 
these cases, the treatment must not be given (see chapter 9 for more 
information). If there is not a valid and applicable advance decision, 
treatment should be provided based on the person’s best interests.
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What role do beliefs and values play?
5.46   Everybody’s values and beliefs infl uence the decisions they make. They 
Chapter 5
may become especially important for someone who lacks capacity to 
make a decision because of a progressive illness such as dementia, 
What does the 
for example. Evidence of a person’s beliefs and values can be found in 
Act mean when 
things like their:
it talks about 
‘best interests’?
• cultural background
• religious beliefs
•  political convictions, or
•  past behaviour or habits.
 
Some people set out their values and beliefs in a written statement 
while they still have capacity.
Scenario: Considering beliefs and values
Anita, a young woman, suffers serious brain damage during a car 
accident. The court appoints her father as deputy to invest the 
compensation she received. As the decision-maker he must think about 
her wishes, beliefs and values before deciding how to invest the money.
Anita had worked for an overseas charity. Her father talks to her former 
colleagues. They tell him how Anita’s political beliefs shaped her work 
and personal beliefs, so he decides not to invest in the bonds that a 
fi nancial adviser had recommended, because they are from companies 
Anita would not have approved of. Instead, he employs an ethical 
investment adviser to choose appropriate companies in line with 
her beliefs.
What other factors should a decision-maker consider?
5.47   Section 4(6)(c) of the Act requires decision-makers to consider any 
other factors the person who lacks capacity would consider if they 
were able to do so. This might include the effect of the decision 
on other people, obligations to dependants or the duties of a 
responsible citizen.
5.48   The Act allows actions that benefi t other people, as long as they are 
in the best interests of the person who lacks capacity to make the 
decision. For example, having considered all the circumstances of 
the particular case, a decision might be made to take a blood sample 
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Mental Capacity Act Code of Practice
from a person who lacks capacity to consent, to check for a genetic 
link to cancer within the family, because this might benefi t someone 
else in the family. But it might still be in the best interests of the 
person who lacks capacity. ‘Best interests’ goes beyond the person’s 
medical interests.
 
For example, courts have previously ruled that possible wider benefi ts 
to a person who lacks capacity to consent, such as providing or 
gaining emotional support from close relationships, are important 
factors in working out the person’s own best interests.17 If it is 
likely that the person who lacks capacity would have considered 
these factors themselves, they can be seen as part of the person’s 
best interests.
Who should be consulted when working out someone’s best 
interests?

5.49   The Act places a duty on the decision-maker to consult other people 
close to a person who lacks capacity, where practical and appropriate, 
on decisions affecting the person and what might be in the person’s 
best interests. This also applies to those involved in caring for the 
person and interested in the person’s welfare. Under section 4(7), 
the decision-maker has a duty to take into account the views of the 
following people, where it is practical and appropriate to do so:
•  anyone the person has previously named as someone they want to 
be consulted
•  anyone involved in caring for the person
•  anyone interested in their welfare (for example, family carers, other 
close relatives, or an advocate already working with the person)
•  an attorney appointed by the person under a Lasting Power of 
Attorney, and
•  a deputy appointed for that person by the Court of Protection.
5.50  If there is no-one to speak to about the person’s best interests, in 
some circumstances the person may qualify for an Independent Mental 
Capacity Advocate (IMCA). For more information on IMCAs, see 
chapter 10.
17  See for example Re Y (Mental Incapacity: Bone marrow transplant) [1996] 2 FLR 787; 
Re A (Male Sterilisation) [2000] 1 FLR 549
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Mental Capacity Act Code of Practice
5.51   Decision-makers must show they have thought carefully about who to 
speak to. If it is practical and appropriate to speak to the above people, 
Chapter 5
they must do so and must take their views into account. They must 
be able to explain why they did not speak to a particular person – it is 
good practice to have a clear record of their reasons. It is also good 
What does the 
Act mean when 
practice to give careful consideration to the views of family carers, if it 
it talks about 
is possible to do so. 
‘best interests’?
5.52  It is also good practice for healthcare and social care staff to record 
at the end of the process why they think a specifi c decision is in the 
person’s best interests. This is particularly important if healthcare and 
social care staff go against the views of somebody who has been 
consulted while working out the person’s best interests.
5.53   The decision-maker should try to fi nd out:
•  what the people consulted think is in the person’s best interests in 
this matter, and
•  if they can give information on the person’s wishes and feelings, 
beliefs and values.
5.54   This information may be available from somebody the person named 
before they lost capacity as someone they wish to be consulted. 
People who are close to the person who lacks capacity, such as close 
family members, are likely to know them best. They may also be able 
to help with communication or interpret signs that show the person’s 
present wishes and feelings. Everybody’s views are equally important 
– even if they do not agree with each other. They must be considered 
alongside the views of the person who lacks capacity and other 
factors. See paragraphs 5.62–5.69 below for guidance on dealing with 
confl icting views.
Scenario: Considering other people’s views
Lucia, a young woman with severe brain damage, is cared for at home 
by her parents and attends a day centre a couple of days each week. 
The day centre staff would like to take some of the service users 
on holiday. They speak to Lucia’s parents as part of the process of 
assessing whether the holiday would be in her best interests.
The parents think that the holiday would be good for her, but they are 
worried that Lucia gets very anxious if she is surrounded by strangers 
who don’t know how to communicate with her. Having tried to seek 
Lucia’s views and involve her in the decision, the staff and parents 
agree that a holiday would be in her best interests, as long as her care 
assistant can go with her to help with communication.
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5.55  Where an attorney has been appointed under a Lasting Power 
of Attorney or Enduring Power of Attorney, or a deputy has been 
appointed by a court, they must make the decisions on any matters 
they have been appointed to deal with. Attorneys and deputies 
should also be consulted, if practical and appropriate, on other issues 
affecting the person who lacks capacity.
 
For instance, an attorney who is appointed only to look after the 
person’s property and affairs may have information about the person’s 
beliefs and values, wishes and feelings, that could help work out 
what would be in the person’s best interests regarding healthcare or 
treatment decisions. (See chapters 7 and 8 for more information about 
the roles of attorneys and deputies.)
How can decision-makers respect confidentiality?
5.56   Decision-makers must balance the duty to consult other people with 
the right to confi dentiality of the person who lacks capacity. So if 
confi dential information is to be discussed, they should only seek the 
views of people who it is appropriate to consult, where their views are 
relevant to the decision to be made and the particular circumstances. 
5.57   There may be occasions where it is in the person’s best interests for 
personal information (for example, about their medical condition, if the 
decision concerns the provision of medical treatment) to be revealed to 
the people consulted as part of the process of working out their best 
interests (further guidance on this is given in chapter 16). Healthcare 
and social care staff who are trying to determine a person’s best 
interests must follow their professional guidance, as well as other 
relevant guidance, about confi dentiality.
When does the best interests principle apply?
5.58  Section 1(5) of the Act confi rms that the principle applies to any act 
done, or any decision made, on behalf of someone where there is 
reasonable belief that the person lacks capacity under the Act. This 
covers informal day-to-day decisions and actions as well as decisions 
made by the courts.
Reasonable belief about a person’s best interests
5.59  Section 4(9) confi rms that if someone acts or makes a decision in the 
reasonable belief that what they are doing is in the best interests of 
the person who lacks capacity, then – provided they have followed the 
checklist in section 4 – they will have complied with the best interests 
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Mental Capacity Act Code of Practice
principle set out in the Act. Coming to an incorrect conclusion about a 
person’s capacity or best interests does not necessarily mean that the 
Chapter 5
decision-maker would not get protection from liability (this is explained 
in chapter 6). But they must be able to show that it was reasonable for 
them to think that the person lacked capacity and that they were acting 
What does the 
Act mean when 
in the person’s best interests at the time they made their decision or 
it talks about 
took action.
‘best interests’?
5.60  Where there is a need for a court decision, the court is likely to require 
formal evidence of what might be in the person’s best interests. 
This will include evidence from relevant professionals (for example, 
psychiatrists or social workers). But in most day-to-day situations, 
there is no need for such formality. In emergency situations, it may not 
be practical or possible to gather formal evidence.
5.61  Where the court is not involved, people are still expected to have 
reasonable grounds for believing that they are acting in somebody’s 
best interests. This does not mean that decision-makers can simply 
impose their own views. They must have objective reasons for their 
decisions – and they must be able to demonstrate them. They must 
be able to show they have considered all relevant circumstances and 
applied all elements of the best interests checklist.
Scenario: Demonstrating reasonable belief
Mrs Prior is mugged and knocked unconscious. She is brought to 
hospital without any means of identifi cation. She has head injuries and a 
stab wound, and has lost a lot of blood. In casualty, a doctor arranges an 
urgent blood transfusion. Because this is necessary to save her life, the 
doctor believes this is in her best interests.
When her relatives are contacted, they say that Mrs Prior’s beliefs meant 
that she would have refused all blood products. But since Mrs Prior’s 
handbag had been stolen, the doctor had no idea who the woman was 
nor what her beliefs her. He needed to make an immediate decision and 
Mrs Prior lacked capacity to make the decision for herself. Therefore he 
had reasonable grounds for believing that his action was in his patient’s 
best interests – and so was protected from liability.
Now that the doctor knows Mrs Prior’s beliefs, he can take them into 
account in future decisions about her medical treatment if she lacks 
capacity to make them for herself. He can also consult her family, now 
that he knows where they are.
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Mental Capacity Act Code of Practice
What problems could arise when working out someone’s best 
interests?

5.62  It is important that the best interests principle and the statutory 
checklist are fl exible. Without fl exibility, it would be impossible to 
prioritise factors in different cases – and it would be diffi cult to ensure 
that the outcome is the best possible for the person who lacks capacity 
to make the particular decision. Some cases will be straightforward. 
Others will require decision-makers to balance the pros and cons of all 
relevant factors.18 But this fl exibility could lead to problems in reaching 
a conclusion about a person’s best interests.
What happens when there are conflicting concerns?
5.63  A decision-maker may be faced with people who disagree about a 
person’s best interests. Family members, partners and carers may 
disagree between themselves. Or they might have different memories 
about what views the person expressed in the past. Carers and family 
might disagree with a professional’s view about the person’s care or 
treatment needs.
5.64  The decision-maker will need to fi nd a way of balancing these 
concerns or deciding between them. The fi rst approach should be 
to review all elements of the best interests checklist with everyone 
involved. They should include the person who lacks capacity (as much 
as they are able to take part) and anyone who has been involved in 
earlier discussions. It may be possible to reach an agreement at a 
meeting to air everyone’s concerns. But an agreement in itself might 
not be in the person’s best interests. Ultimate responsibility for working 
out best interests lies with the decision-maker.
18  Re A (Male Sterilisation) [2000] 1 FLR 549
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Mental Capacity Act Code of Practice
Scenario: Dealing with disagreement
Chapter 5
Some time ago, Mr Graham made a Lasting Power of Attorney (LPA) 
appointing his son and daughter as joint attorneys to manage his 
What does the 
fi nances and property. He now has Alzheimer’s disease and has moved 
Act mean when 
into private residential care. The son and daughter have to decide what 
it talks about 
‘best interests’?
to do with Mr Graham’s house.
His son thinks it is in their father’s best interests to sell it and invest the 
money for Mr Graham’s future care. But his daughter thinks it is in 
Mr Graham’s best interests to keep the property, because he enjoys 
visiting and spending time in his old home.
After making every effort to get Mr Graham’s views, the family meets 
to discuss all the issues involved. After hearing other family views, the 
attorneys agree that it would be in their father’s best interests to keep the 
property for so long as he is able to enjoy visiting it.
Family, partners and carers who are consulted
5.65  If disagreement continues, the decision-maker will need to weigh 
up the views of different parties. This will depend entirely upon the 
circumstances of each case, the people involved and their relationship 
with the person who lacks capacity. Sometimes the decision-maker will 
fi nd that carers have an insight into how to interpret a person’s wishes 
and feelings that can help them reach a decision.
5.66  At the same time, paid care workers and voluntary sector support 
workers may have specialist knowledge about up-to-date care options 
or treatments. Some may also have known the person for many years.
5.67  People with confl icting interests should not be cut out of the process 
(for example, those who stand to inherit from the person’s will may 
still have a right to be consulted about the person’s care or medical 
treatment). But decision-makers must always ensure that the interests 
of those consulted do not overly infl uence the process of working out 
a person’s best interests. In weighing up different contributions, the 
decision-maker should consider:
•  how long an individual has known the person who lacks capacity, 
and
•  what their relationship is.
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Mental Capacity Act Code of Practice
Scenario: Settling disagreements
Robert is 19 and has learning disabilities and autism. He is about to 
leave his residential special school. His parents want Robert to go to a 
specialist unit run by a charitable organisation, but he has been offered a 
place in a local supported living scheme. The parents don’t think Robert 
will get appropriate care there.
The school sets up a ‘best interests’ meeting. People who attend include 
Robert, his parents, teachers from his school and professionals involved 
in preparing Robert’s care plan. Robert’s parents and teachers know him 
best. They set out their views and help Robert to communicate where he 
would like to live.   
Social care staff identify some different placements within the county. 
Robert visits these with his parents. After further discussion, everyone 
agrees that a community placement near his family home would be in 
Robert’s best interests.
Settling disputes about best interests
5.68  If someone wants to challenge a decision-maker’s conclusions, there 
are several options:
•  Involve an advocate to act on behalf of the person who lacks 
capacity to make the decision (see paragraph 5.69 below).
•  Get a second opinion.
•  Hold a formal or informal ‘best interests’ case conference.
•  Attempt some form of mediation (see chapter 15).
•  Pursue a complaint through the organisation’s formal procedures.
 
Ultimately, if all other attempts to resolve the dispute have failed, the 
court might need to decide what is in the person’s best interests. 
Chapter 8 provides more information about the Court of Protection.
Advocacy
5.69  An advocate might be useful in providing support for the person who 
lacks capacity to make a decision in the process of working out their 
best interests, if:
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Mental Capacity Act Code of Practice
•  the person who lacks capacity has no close family or friends to 
take an interest in their welfare, and they do not qualify for an 
Chapter 5
Independent Mental Capacity Advocate (see chapter 10)
•  family members disagree about the person’s best interests
What does the 
•  family members and professionals disagree about the person’s best 
Act mean when 
it talks about 
interests
‘best interests’?
•  there is a confl ict of interest for people who have been consulted 
in the best interests assessment (for example, the sale of a family 
property where the person lives)
•  the person who lacks capacity is already in contact with an advocate
•  the proposed course of action may lead to the use of restraint or 
other restrictions on the person who lacks capacity
•  there is a concern about the protection of a vulnerable adult.
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Mental Capacity Act Code of Practice
6 What protection does the Act 
offer for people providing care or 
treatment?
Section 5 of the Act allows carers, healthcare and social care staff to carry 
out certain tasks without fear of liability. These tasks involve the personal 
care, healthcare or treatment of people who lack capacity to consent to 
them. The aim is to give legal backing for acts that need to be carried out in 
the best interests of the person who lacks capacity to consent.19
This chapter explains:
•  how the Act provides protection from liability
•  how that protection works in practice
•  where protection is restricted or limited, and
•  when a carer can use a person’s money to buy goods or services without 
formal permission.
In this chapter, as throughout the Code, a person’s capacity (or lack 
of capacity) refers specifically to their capacity to make a particular 
decision at the time it needs to be made.
Quick summary
The following steps list all the things that people providing care or treatment 
should bear in mind to ensure they are protected by the Act.
Acting in connection with the care or treatment of someone who lacks 
capacity to consent

•  Is the action to be carried out in connection with the care or treatment of a 
person who lacks capacity to give consent to that act?
•  Does it involve major life changes for the person concerned? If so, it will 
need special consideration.
•  Who is carrying out the action? Is it appropriate for that person to do so at 
the relevant time?
19  The provisions of section 5 are based on the common law ‘doctrine of necessity’ as set 
out in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1
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Mental Capacity Act Code of Practice
Checking whether the person has capacity to consent
Chapter 6
•  Have all possible steps been taken to try to help the person make a 
decision for themselves about the action?
What protection 
•  Has the two-stage test of capacity been applied?
does the Act 
offer for people 
•  Are there reasonable grounds for believing the person lacks capacity to 
providing care or 
give permission?
treatment?
Acting in the person’s best interests
•  Has the best interests checklist been applied and all relevant 
circumstances considered?
•  Is a less restrictive option available?
•  Is it reasonable to believe that the proposed act is in the person’s 
best interests?
Understanding possible limitations on protection from liability
•  If restraint is being considered, is it necessary to prevent harm to the 
person who lacks capacity, and is it a proportionate response to the 
likelihood of the person suffering harm – and to the seriousness of 
that harm?
•  Could the restraint be classed as a ‘deprivation of the person’s liberty’?
•  Does the action confl ict with a decision that has been made by an attorney 
or deputy under their powers?
Paying for necessary goods and services
•  If someone wishes to use the person’s money to buy goods or pay for 
services for someone who lacks capacity to do so themselves, are those 
goods or services necessary and in the person’s best interests?
•  Is it necessary to take money from the person’s bank or building society 
account or to sell the person’s property to pay for goods or services? If so, 
formal authority will be required.
What protection do people have when caring for those who 
lack capacity to consent?

6.1  
Every day, millions of acts are done to and for people who lack 
capacity either to:
•  take decisions about their own care or treatment, or
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Mental Capacity Act Code of Practice
•  consent to someone else caring for them.
 
 Such acts range from everyday tasks of caring (for example, helping 
someone to wash) to life-changing events (for example, serious 
medical treatment or arranging for someone to go into a care home).
 
 In theory, many of these actions could be against the law. Legally, 
people have the right to stop others from interfering with their body or 
property unless they give permission. But what happens if someone 
lacks capacity to give permission? Carers who dress people who 
cannot dress themselves are potentially interfering with someone’s 
body without their consent, so could theoretically be prosecuted for 
assault. A neighbour who enters and cleans the house of a person 
who lacks capacity could be trespassing on the person’s property.
6.2  
Section 5 of the Act provides ‘protection from liability’. In other words, 
it protects people who carry out these actions. It stops them being 
prosecuted for acts that could otherwise be classed as civil wrongs 
or crimes. By protecting family and other carers from liability, the Act 
allows necessary caring acts or treatment to take place as if a person 
who lacks capacity to consent had consented to them. People providing 
care of this sort do not therefore need to get formal authority to act.
6.3  
Importantly, section 5 does not give people caring for or treating 
someone the power to make any other decisions on behalf of those 
who lack capacity to make their own decisions. Instead, it offers 
protection from liability so that they can act in connection with the 
person’s care or treatment. The power to make decisions on behalf of 
someone who lacks capacity can be granted through other parts of the 
Act (such as the powers granted to attorneys and deputies, which are 
explained in chapters 7 and 8).
What type of actions might have protection from liability?
6.4  
Section 5(1) provides possible protection for actions carried out in 
connection with care or treatment
. The action may be carried out on 
behalf of someone who is believed to lack capacity to give permission 
for the action, so long as it is in that person’s best interests (see 
chapter 5). The Act does not defi ne ‘care’ or ‘treatment’. They should 
be given their normal meaning. However, section 64(1) makes clear that 
treatment includes diagnostic or other procedures.
6.5  
Actions that might be covered by section 5 include:
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Mental Capacity Act Code of Practice
Personal care
Chapter 6
•  helping with washing, dressing or personal hygiene
•  helping with eating and drinking
What protection 
does the Act 
•  helping with communication
offer for people 
•  helping with mobility (moving around)
providing care or 
treatment?
•  helping someone take part in education, social or leisure activities
•  going into a person’s home to drop off shopping or to see if they 
are alright
•  doing the shopping or buying necessary goods with the person’s 
money
•  arranging household services (for example, arranging repairs or 
maintenance for gas and electricity supplies)
•  providing services that help around the home (such as homecare or 
meals on wheels)
•  undertaking actions related to community care services (for 
example, day care, residential accommodation or nursing care) – but 
see also paragraphs 6.7–6.14 below
•  helping someone to move home (including moving property and 
clearing the former home).
Healthcare and treatment
•  carrying out diagnostic examinations and tests (to identify an illness, 
condition or other problem)
•  providing professional medical, dental and similar treatment
• giving medication
•  taking someone to hospital for assessment or treatment
•  providing nursing care (whether in hospital or in the community)
•  carrying out any other necessary medical procedures (for example, 
taking a blood sample) or therapies (for example, physiotherapy or 
chiropody)
•  providing care in an emergency.
6.6  
These actions only receive protection from liability if the person is 
reasonably believed to lack capacity to give permission for the action. 
The action must also be in the person’s best interests and follow the 
Act’s principles (see paragraph 6.26 onwards).
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Mental Capacity Act Code of Practice
6.7  
Some acts in connection with care or treatment may cause major life 
changes with signifi cant consequences for the person concerned. 
Those requiring particularly careful consideration include a change 
of residence, perhaps into a care home or nursing home, or major 
decisions about healthcare and medical treatment. These are 
described in the following paragraphs.
A change of residence
6.8  
Sometimes a person cannot get suffi cient or appropriate care in their 
own home, and they may have to move – perhaps to live with relatives 
or to go into a care home or nursing home. If the person lacks capacity 
to consent to a move, the decision-maker(s) must consider whether the 
move is in the person’s best interests (by referring to the best interests 
checklist in chapter 5 and in particular the person’s past and present 
wishes and feelings, as well as the views of other relevant people). The 
decision-maker(s) must also consider whether there is a less restrictive 
option (see chapter 2, principle 5).
 
This may involve speaking to:
•  anyone currently involved in the person’s care
•  family carers and other family members close to the person and 
interested in their welfare
•  others who have an interest in the person’s welfare
•  anyone the person has previously named as someone to be 
consulted, and
•  an attorney or deputy who has been legally appointed to make 
particular decisions on their behalf.
6.9  
Some cases will require an Independent Mental Capacity Advocate 
(IMCA). The IMCA represents and supports the person who lacks 
capacity and they will provide information to make sure the fi nal 
decision is in the person’s best interests (see chapter 10). An IMCA is 
needed when there is no-one close to the person who lacks capacity to 
give an opinion about what is best for them, and:
•  an NHS body is proposing to provide serious medical treatment or
•  an NHS body or local authority is proposing to arrange 
accommodation in hospital or a care home or other longer-term 
accommodation and
  –  the person will stay in hospital longer than 28 days, or
  –  they will stay in a care home for more than eight weeks.
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Mental Capacity Act Code of Practice
 
 There are also some circumstances where an IMCA may be appointed 
on a discretionary basis. More guidance is available in chapter 10.
Chapter 6
6.10  Sometimes the fi nal outcome may not be what the person who lacks 
What protection 
capacity wanted. For example, they might want to stay at home, but 
does the Act 
those caring for them might decide a move is in their best interests. In 
offer for people 
all cases, those making the decision must fi rst consider other options 
providing care or 
that might restrict the person’s rights and freedom of action less (see 
treatment?
chapter 2, principle 5).
6.11  In some cases, there may be no alternative but to move the person. 
Such a move would normally require the person’s formal consent if 
they had capacity to give, or refuse, it. In cases where a person lacks 
capacity to consent, section 5 of the Act allows carers to carry out 
actions relating to the move – as long as the Act’s principles and the 
requirements for working out best interests have been followed. This 
applies even if the person continues to object to the move.
 
However, section 6 places clear limits on the use of force or restraint 
by only permitting restraint to be used (for example, to transport the 
person to their new home) where this is necessary to protect the 
person from harm and is a proportionate response to the risk of harm 
(see paragraphs 6.40–6.53). Any action taken to move the person 
concerned or their property could incur liability unless protected under 
section 5.
6.12   If there is a serious disagreement about the need to move the person 
that cannot be settled in any other way, the Court of Protection can be 
asked to decide what the person’s best interests are and where they 
should live. For example, this could happen if members of a family 
disagree over what is best for a relative who lacks capacity to give or 
deny permission for a move.
6.13   In some circumstances, being placed in a hospital or care home may 
deprive the person of their liberty (see paragraphs 6.49–6.53). If this 
is the case, there is no protection from liability – even if the placement 
was considered to be in the best interests of the person (section 6(5)). 
It is up to the decision-maker to fi rst look at a range of alternative and 
less restrictive options to see if there is any way of avoiding taking 
away the person’s liberty.
6.14   If there is no alternative way of caring for the person, specifi c authority 
will be required to keep the person in a situation which deprives 
them of their liberty. For instance, sometimes the Court of Protection 
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Mental Capacity Act Code of Practice
might be prepared to grant an order of which a consequence is the 
deprivation of a person’s liberty – if it is satisfi ed that this is in the 
person’s best interests. In other cases, if the person needs treatment 
for a mental disorder and meets the criteria for detention under the 
Mental Health Act 1983, this may be used to admit or keep the person 
in hospital (see chapter 13).
Healthcare and treatment decisions
6.15   Section 5 also allows actions to be taken to ensure a person who 
lacks capacity to consent receives necessary medical treatment. This 
could involve taking the person to hospital for out-patient treatment 
or arranging for admission to hospital. Even if a person who lacks 
capacity to consent objects to the proposed treatment or admission 
to hospital, the action might still be allowed under section 5 (but see 
paragraphs 6.20 and 6.22 below). But there are limits about whether 
force or restraint can be used to impose treatment (see paragraphs 
6.40–6.53).
6.16   Major healthcare and treatment decisions – for example, major surgery 
or a decision that no attempt is to be made to resuscitate the patient 
(known as ‘DNR’ decisions) – will also need special consideration. 
Unless there is a valid and applicable advance decision to refuse the 
specifi c treatment, healthcare staff must carefully work out what would 
be in the person’s best interests (see chapter 5). As part of the process 
of working this out, they will need to consider (where practical and 
appropriate):
•  the past and present wishes and feelings, beliefs and values of the 
person who lacks capacity to make the treatment decision, including 
any advance statement the person wrote setting out their wishes 
when they had capacity
•  the views of anyone previously named by the person as someone to 
be consulted
•  the views of anyone engaged in caring for the person
•  the views of anyone interested in their welfare, and
•  the views of any attorney or deputy appointed for the person.
 In 
specifi c cases where there is no-one else available to consult about 
the person’s best interests, an IMCA must be appointed to support and 
represent the person (see paragraph 6.9 above and chapter 10).
 
Healthcare staff must also consider whether there are alternative 
treatment options that might be less intrusive or restrictive (see chapter 
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Mental Capacity Act Code of Practice
2, principle 5). When deciding about the provision or withdrawal of life-
sustaining treatment, anyone working out what is in the best interests 
Chapter 6
of a person who lacks capacity must not be motivated by a desire to 
bring about the person’s death (see chapter 5).
What protection 
does the Act 
6.17  Multi-disciplinary meetings are often the best way to decide on a 
offer for people 
person’s best interests. They bring together healthcare and social 
providing care or 
care staff with different skills to discuss the person’s options and 
treatment?
may involve those who are closest to the person concerned. But fi nal 
responsibility for deciding what is in a person’s best interest lies with 
the member of healthcare staff responsible for the person’s treatment. 
They should record their decision, how they reached it and the reasons 
for it in the person’s clinical notes. As long as they have recorded 
objective reasons to show that the decision is in the person’s best 
interests, and the other requirements of section 5 of the Act are met, 
all healthcare staff taking actions in connection with the particular 
treatment will be protected from liability.
6.18  Some treatment decisions are so serious that the court has to make 
them – unless the person has previously made a Lasting Power of 
Attorney appointing an attorney to make such healthcare decisions for 
them (see chapter 7) or they have made a valid advance decision to 
refuse the proposed treatment (see chapter 9). The Court of Protection 
must be asked to make decisions relating to:20
•  the proposed withholding or withdrawal of artifi cial nutrition and 
hydration (ANH) from a patient in a permanent vegetative state (PVS)
•  cases where it is proposed that a person who lacks capacity to 
consent should donate an organ or bone marrow to another person
•  the proposed non-therapeutic sterilisation of a person who lacks 
capacity to consent (for example, for contraceptive purposes)
•  cases where there is a dispute about whether a particular treatment 
will be in a person’s best interests.
 
See paragraphs 8.18–8.24 for more details on these types of cases.
6.19  This last category may include cases that introduce ethical dilemmas 
concerning untested or innovative treatments (for example, new 
treatments for variant Creutzfeldt-Jakob Disease (CDJ)) where it is 
not known if the treatment will be effective, or certain cases involving 
a termination of pregnancy. It may also include cases where there is 
confl ict between professionals or between professionals and family 
members which cannot be resolved in any other way.
20  The procedures resulting from those court judgements are set out in a Practice Note 
from the Offi cial Solicitor (available at www.offi cialsolicitor.gov.uk) and will be set out in a 
Practice Direction from the new Court of Protection.
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Mental Capacity Act Code of Practice
 
Where there is confl ict, it is advisable for parties to get legal advice, 
though they may not necessarily be able to get legal aid to pay for this 
advice. Chapter 8 gives more information about the need to refer cases 
to court for a decision.
Who is protected from liability by section 5?
6.20  Section 5 of the Act is most likely to affect:
•  family carers and other kinds of carers
• care workers
•  healthcare and social care staff, and
•  others who may occasionally be involved in the care or treatment of 
a person who lacks capacity to consent (for example, ambulance 
staff, housing workers, police offi cers and volunteer support 
workers).
6.21   At any time, it is likely that several people will be carrying out tasks that 
are covered by section 5 of the Act. Section 5 does not:
•  give one person more rights than another to carry out tasks
•  specify who has the authority to act in a specifi c instance
•  allow somebody to make decisions relating to subjects other than 
the care or treatment of the person who lacks capacity, or
•  allow somebody to give consent on behalf of a person who lacks 
capacity to do so.
6.22   To receive protection from liability under section 5, all actions must be 
related to the care or treatment of the person who lacks capacity to 
consent. Before taking action, carers must fi rst reasonably believe that:
•  the person lacks the capacity to make that particular decision at the 
time it needs to be made, and
•  the action is in the person’s best interests.
 
This is explained further in paragraphs 6.26–6.34 below.
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Mental Capacity Act Code of Practice
Scenario: Protecting multiple carers
Chapter 6
Mr Rose, an older man with dementia, gets help from several people. 
His sister sometimes cooks meals for him. A district nurse visits him to 
What protection 
does the Act 
change the dressing on a pressure sore, and a friend often takes 
offer for people 
Mr Rose to the park, guiding him when they cross the road. Each of 
providing care or 
these individuals would be protected from liability under section 5 of 
treatment?
the Act – but only if they take reasonable steps to check that he lacks 
capacity to consent to the actions they take and hold a reasonable 
belief that the actions are in Mr Rose’s best interests.
6.23   Section 5 may also protect carers who need to use the person’s money 
to pay for goods or services that the person needs but lacks the 
capacity to purchase for themselves. However, there are strict controls 
over who may have access to another person’s money. See paragraphs 
6.56–6.66 for more information.
6.24   Carers who provide personal care services must not carry out 
specialist procedures that are normally done by trained healthcare 
staff. If the action involves medical treatment, the doctor or other 
member of healthcare staff with responsibility for the patient will be the 
decision-maker who has to decide whether the proposed treatment is 
in the person’s best interests (see chapter 5). A doctor can delegate 
responsibility for giving the treatment to other people in the clinical 
team who have the appropriate skills or expertise. People who do 
more than their experience or qualifi cations allow may not be protected 
from liability.
Care planning
6.25  Decisions about a person’s care or treatment are often made by a 
multi-disciplinary team (a team of professionals with different skills 
that contribute to a person’s care), by drawing up a care plan for 
the person. The preparation of a care plan should always include an 
assessment of the person’s capacity to consent to the actions covered 
by the care plan, and confi rm that those actions are agreed to be in the 
person’s best interests. Healthcare and social care staff may then be 
able to assume that any actions they take under the care plan are in the 
person’s best interests, and therefore receive protection from liability 
under section 5. But a person’s capacity and best interests must still 
be reviewed regularly.
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Mental Capacity Act Code of Practice
What steps should people take to be protected from liability?
6.26  As well as taking the following steps, somebody who wants to be 
protected from liability should bear in mind the statutory principles set 
out in section 1 of the Act (see chapter 2).
6.27   First, reasonable steps must be taken to fi nd out whether a person has 
the capacity to make a decision about the proposed action (section 
5(1)(a)). If the person has capacity, they must give their consent for 
anyone to take an action on their behalf, so that the person taking the 
action is protected from liability. For guidance on what is classed as 
‘reasonable steps’, see paragraphs 6.29–6.34. But reasonable steps 
must always include:
•  taking all practical and appropriate steps to help people to make a 
decision about an action themselves, and
•  applying the two-stage test of capacity (see chapter 4).
 
The person who is going to take the action must have a ‘reasonable 
belief’ that the individual lacks capacity to give consent for the action 
at the time it needs to be taken.
6.28   Secondly, the person proposing to take action must have reasonable 
grounds for believing that the action is in the best interests of the 
person who lacks capacity. They should apply all elements of the best 
interests checklist (see chapter 5), and in particular
•  consider whether the person is likely to regain capacity to make this 
decision in the future. Can the action wait until then?
•  consider whether a less restrictive option is available (chapter 2, 
principle 5), and
•  have objective reasons for thinking an action is in the best interests 
of the person who lacks capacity to consent to it.
What is ‘reasonable’?
6.29  As explained in chapter 4, anyone assessing a person’s capacity to 
make decisions for themselves or give consent must focus wholly 
on whether the person has capacity to make a specifi c decision at 
the time it needs to be made and not the person’s capacity to make 
decisions generally. For example, a carer helping a person to dress 
can assess a person’s capacity to agree to their help by explaining the 
different options (getting dressed or staying in nightclothes), and the 
consequences (being able to go out, or staying in all day).
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Mental Capacity Act Code of Practice
6.30  Carers do not have to be experts in assessing capacity. But they must 
be able to show that they have taken reasonable steps to fi nd out if the 
Chapter 6
person has the capacity to make the specifi c decision. Only then will 
they have reasonable grounds for believing the person lacks capacity 
What protection 
in relation to that particular matter. See paragraphs 4.44–4.45 for 
does the Act 
guidance on what is classed as ‘reasonable’ – although this will vary, 
offer for people 
depending on circumstances. 
providing care or 
treatment?
6.31   For the majority of decisions, formal assessment processes are unlikely 
to be required. But in some circumstances, professional practice 
requires some formal procedures to be carried out (for example, where 
consent to medical treatment is required, the doctor will need to assess 
– and record the person’s capacity to consent). Under section 5, carers 
and professionals will be protected from liability as long as they are 
able to provide some objective reasons that explain why they believe 
that the person lacks capacity to consent to the action. If somebody 
challenges their belief, both carers and professionals will be protected 
from liability as long as they can show that they took steps to fi nd out 
whether the person has capacity and that they have a reasonable belief 
that the person lacks capacity.
6.32   Similarly, carers, relatives and others involved in caring for someone 
who lacks capacity must have reasonable grounds for believing 
that their action is in the person’s best interests. They must not 
simply impose their own views. They must be able to show that they 
considered all relevant circumstances and applied the best interests 
checklist. This includes showing that they have tried to involve the 
person who lacks capacity, and fi nd out their wishes and feelings, 
beliefs and values. They must also have asked other people’s opinions, 
where practical and appropriate. If somebody challenges their 
decision, they will be protected from liability if they can show that it 
was reasonable for them to believe that their action was in the person’s 
best interests – in all the circumstances of that particular case.
6.33   If healthcare and social care staff are involved, their skills and 
knowledge will affect what is classed as ‘reasonable’. For example, a 
doctor assessing somebody’s capacity to consent to treatment must 
demonstrate more skill than someone without medical training. They 
should also record in the person’s healthcare record the steps they 
took and the reasons for the fi nding. Healthcare and social care staff 
should apply normal clinical and professional standards when deciding 
what treatments to offer. They must then decide whether the proposed 
treatment is in the best interests of the person who lacks capacity 
to consent. This includes considering all relevant circumstances and 
applying the best interests checklist (see chapter 5).
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Mental Capacity Act Code of Practice
6.34   Healthcare and social care staff can be said to have ‘reasonable 
grounds for believing’ that a person lacks capacity if:
•  they are working to a person’s care plan, and
•  the care planning process involved an assessment of the person’s 
capacity to make a decision about actions in the care plan.
 
It is also reasonable for them to assume that the care planning process 
assessed a person’s best interests. But they should still make every 
effort to communicate with the person to fi nd out if they still lack 
capacity and the action is still in their best interests.
Scenario: Working with a care plan
Margaret, an elderly woman, has serious mental health and physical 
problems. She lives in a nursing home and a care plan has been 
prepared by the multi-disciplinary team, in consultation with her 
relatives in deciding what course of action would be in Margaret’s best 
interests. The care plan covers the medication she has been prescribed, 
the physiotherapy she needs, help with her personal care and other 
therapeutic activities such as art therapy.
Although attempts were made to involve Margaret in the care planning 
process, she has been assessed by the doctor responsible for her 
care as lacking capacity to consent to most aspects of her care plan. 
The care plan can be relied on by the nurse or care assistant who 
administers the medication, by the physiotherapist and art therapist, 
and also by the care assistant who helps with Margaret’s personal care, 
providing them with reasonable grounds for believing that they are 
acting in her best interests.
However, as each act is performed, they must all take reasonable 
steps to communicate with Margaret to explain what they are doing 
and to ascertain whether she has the capacity to consent to the act in 
question. If they think she does, they must stop the treatment unless or 
until Margaret agrees that it should continue.
What happens in emergency situations?
6.35  Sometimes people who lack capacity to consent will require 
emergency medical treatment to save their life or prevent them from 
serious harm. In these situations, what steps are ‘reasonable’ will differ 
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Mental Capacity Act Code of Practice
to those in non-urgent cases. In emergencies, it will almost always be 
in the person’s best interests to give urgent treatment without delay. 
Chapter 6
One exception to this is when the healthcare staff giving treatment 
are satisfi ed that an advance decision to refuse treatment exists (see 
What protection 
paragraph 6.37).
does the Act 
offer for people 
What happens in cases of negligence?
providing care or 
treatment?
6.36   Section 5 does not provide a defence in cases of negligence – either 
in carrying out a particular act or by failing to act where necessary. 
For example, a doctor may be protected against a claim of battery for 
carrying out an operation that is in a person’s best interests. But if they 
perform the operation negligently, they are not protected from a charge 
of negligence. So the person who lacks capacity has the same rights in 
cases of negligence as someone who has consented to the operation.
What is the effect of an advance decision to refuse treatment?
6.37   Sometimes people will make an advance decision to refuse treatment 
while they still have capacity to do so and before they need that 
particular treatment. Healthcare staff must respect this decision if it is 
valid and applies to the proposed treatment.
6.38  If healthcare staff are satisfi ed that an advance decision is valid and 
applies to the proposed treatment, they are not protected from liability 
if they give any treatment that goes against it. But they are protected 
from liability if they did not know about an advance decision or they 
are not satisfi ed that the advance decision is valid and applies in 
the current circumstances (section 26(2)). See chapter 9 for further 
guidance.
What limits are there on protection from liability?
6.39  Section 6 imposes some important limitations on acts which can be 
carried out with protection from liability under section 5 (as described 
in the fi rst part of this chapter). The key areas where acts might not be 
protected from liability are where there is inappropriate use of restraint 
or where a person who lacks capacity is deprived of their liberty.
Using restraint
6.40  Section 6(4) of the Act states that someone is using restraint if they:
•  use force – or threaten to use force – to make someone do 
something that they are resisting, or
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Mental Capacity Act Code of Practice
•  restrict a person’s freedom of movement, whether they are resisting 
or not.
6.41   Any action intended to restrain a person who lacks capacity will not 
attract protection from liability unless the following two conditions 
are met:
•  the person taking action must reasonably believe that restraint is 
necessary to prevent harm to the person who lacks capacity, and
•  the amount or type of restraint used and the amount of time it lasts 
must be a proportionate response to the likelihood and seriousness 
of harm.
 
See paragraphs 6.44–6.48 for more explanation of the terms necessary, 
harm 
and a proportionate response.
6.42   Healthcare and social care staff should also refer to:
•  professional and other guidance on restraint or physical intervention, 
such as that issued by the Department of Health21 or Welsh 
Assembly Government,22 and
•  limitations imposed by regulations and standards, such as the 
national minimum standards for care services (see chapter 14).
6.43   In addition to the requirements of the Act, the common law imposes 
a duty of care on healthcare and social care staff in respect of all 
people to whom they provide services. Therefore if a person who lacks 
capacity to consent has challenging behaviour, or is in the acute stages 
of illness causing them to act in way which may cause harm to others, 
staff may, under the common law, take appropriate and necessary 
action to restrain or remove the person, in order to prevent harm, both 
to the person concerned and to anyone else.
 
 However, within this context, the common law would not provide 
sufficient grounds for an action that would have the effect of depriving 
someone of their liberty (see paragraphs 6.49–6.53).
21  For guidance on using restraint with people with learning disabilities and autistic spectrum 
disorder, see Guidance for restrictive physical interventions (published by the Department 
of Health and Department for Education and Skills and available at www.dh.gov.uk/
assetRoot/04/06/84/61/04068461.pdf).
22  In Wales, the relevant guidance is the Welsh Assembly Government’s Framework for 
restrictive physical intervention policy and practice (available at www.childrenfi rst.wales.
gov.uk/content/framework/phys-int-e.pdf).
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Mental Capacity Act Code of Practice
When might restraint be ‘necessary’?
6.44   Anybody considering using restraint must have objective reasons to 
Chapter 6
justify that restraint is necessary. They must be able to show that the 
person being cared for is likely to suffer harm unless proportionate 
What protection 
restraint is used. A carer or professional must not use restraint just 
does the Act 
so that they can do something more easily. If restraint is necessary 
offer for people 
providing care or 
to prevent harm to the person who lacks capacity, it must be the 
treatment?
minimum amount of force for the shortest time possible.
Scenario: Appropriate use of restraint
Derek, a man with learning disabilities, has begun to behave in a 
challenging way. Staff at his care home think he might have a medical 
condition that is causing him distress. They take him to the doctor, who 
thinks that Derek might have a hormone imbalance. But the doctor 
needs to take a blood test to confi rm this, and when he tries to take the 
test Derek attempts to fi ght him off.
The results might be negative – so the test might not be necessary. But 
the doctor decides that a test is in Derek’s best interests, because failing 
to treat a problem like a hormone imbalance might make it worse. It is 
therefore in Derek’s best interests to restrain him to take the blood test. 
The temporary restraint is in proportion to the likely harm caused by 
failing to treat a possible medical condition.
What is ‘harm’?
6.45   The Act does not defi ne ‘harm’, because it will vary depending on the 
situation. For example,
•  a person with learning disabilities might run into a busy road without 
warning, if they do not understand the dangers of cars
•  a person with dementia may wander away from home and get lost, 
if they cannot remember where they live
•  a person with manic depression might engage in excessive spending 
during a manic phase, causing them to get into debt
•  a person may also be at risk of harm if they behave in a way that 
encourages others to assault or exploit them (for example, by 
behaving in a dangerously provocative way).
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Mental Capacity Act Code of Practice
6.46   Common sense measures can often help remove the risk of harm 
(for example, by locking away poisonous chemicals or removing 
obstacles). Also, care planning should include risk assessments and 
set out appropriate actions to try to prevent possible risks. But it is 
impossible to remove all risk, and a proportionate response is needed 
when the risk of harm does arise.
What is a ‘proportionate response’?
6.47   A ‘proportionate response’ means using the least intrusive type and 
minimum amount of restraint to achieve a specifi c outcome in the best 
interests of the person who lacks capacity. On occasions when the use 
of force may be necessary, carers and healthcare and social care staff 
should use the minimum amount of force for the shortest possible time.
 
 For example, a carer may need to hold a person’s arm while they cross 
the road, if the person does not understand the dangers of roads. But 
it would not be a proportionate response to stop the person going 
outdoors at all. It may be appropriate to have a secure lock on a door 
that faces a busy road, but it would not be a proportionate response 
to lock someone in a bedroom all the time to prevent them from 
attempting to cross the road.
6.48  Carers and healthcare and social care staff should consider less 
restrictive options before using restraint. Where possible, they should 
ask other people involved in the person’s care what action they think 
is necessary to protect the person from harm. For example, it may be 
appropriate to get an advocate to work with the person to see if they 
can avoid or minimise the need for restraint to be used.
Scenario: Avoiding restraint
Oscar has learning disabilities. People at the college he attends 
sometimes cannot understand him, and he gets frustrated. Sometimes 
he hits the wall and hurts himself.
Staff don’t want to take Oscar out of class, because he says he enjoys 
college and is learning new skills. They have allowed his support worker 
to sit with him, but he still gets upset. The support worker could try 
to hold Oscar back. But she thinks this is too forceful, even though it 
would stop him hurting himself.
Instead, she gets expert advice from members of the local community 
team. Observation helps them understand Oscar’s behaviour better. 
They come up with a support strategy that reduces the risk of harmful 
behaviour and is less restrictive of his freedom.
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Mental Capacity Act Code of Practice
When are acts seen as depriving a person of their liberty?
6.49  Although section 5 of the Act permits the use of restraint where it is 
Chapter 6
necessary under the above conditions, section 6(5) confi rms that there 
is no protection under the Act for actions that result in someone being 
What protection 
deprived of their liberty (as defi ned by Article 5(1) of the European 
does the Act 
Convention on Human Rights). This applies not only to public 
offer for people 
providing care or 
authorities covered by the Human Rights Act 1998 but to everyone 
treatment?
who might otherwise get protection under section 5 of the Act. It also 
applies to attorneys or deputies – they cannot give permission for an 
action that takes away a person’s liberty. 
6.50  Sometimes there is no alternative way to provide care or treatment 
other than depriving the person of their liberty. In this situation, some 
people may be detained in hospital under the Mental Health Act 1983 
– but this only applies to people who require hospital treatment for a 
mental disorder (see chapter 13). Otherwise, actions that amount to 
a deprivation of liberty will not be lawful unless formal authorisation 
is obtained.
6.51   In some cases, the Court of Protection might grant an order that 
permits the deprivation of a person’s liberty, if it is satisfi ed that this is 
in a person’s best interests.
6.52   It is diffi cult to defi ne the difference between actions that amount to a 
restriction of someone’s liberty and those that result in a deprivation 
of liberty. In recent legal cases, the European Court of Human Rights 
said that the difference was ‘one of degree or intensity, not one of 
nature or substance’.23 There must therefore be particular factors in the 
specifi c situation of the person concerned which provide the ‘degree’ 
or ‘intensity’ to result in a deprivation of liberty. In practice, this can 
relate to:
•  the type of care being provided
•  how long the situation lasts
•  its effects, or
•  the way in a particular situation came about.24
23  HL v The United Kingdom (Application no, 45508/99). Judgement 5 October 2004, 
paragraph 89
24 In HL v UK (also known as the ‘Bournewood’ case), the European Court said that “the key 
factor in the present case [is] that the health care professionals treating and managing the 
applicant exercised complete and effective control over his care and movements”. They 
found “the concrete situation was that the applicant was under continuous supervision 
and control and was not free to leave.”
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Mental Capacity Act Code of Practice
 
The European Court of Human Rights has identifi ed the following as 
factors contributing to deprivation of liberty in its judgments on cases 
to date:
•  restraint was used, including sedation, to admit a person who is 
resisting
•  professionals exercised complete and effective control over care and 
movement for a signifi cant period
•  professionals exercised control over assessments, treatment, 
contacts and residence
•  the person would be prevented from leaving if they made a 
meaningful attempt to do so
•  a request by carers for the person to be discharged to their care 
was refused
•  the person was unable to maintain social contacts because of 
restrictions placed on access to other people
•  the person lost autonomy because they were under continuous 
supervision and control.25
6.53   The Government has announced that it intends to amend the Act to 
introduce new procedures and provisions for people who lack capacity 
to make relevant decisions but who need to be deprived of their liberty, 
in their best interests, otherwise than under the Mental Health Act 
1983 (the so-called ‘Bournewood provisions’). This chapter will be 
fully revised in due course to refl ect those changes. Information about 
the Government’s current proposals in respect of the Bournewood 
safeguards is available on the Department of Health website. This 
information includes draft illustrative Code of Practice guidance 
about the proposed safeguards. See paragraphs 13.52–13.55 for 
more details.
How does section 5 apply to attorneys and deputies?
6.54  Section 5 does not provide protection for actions that go against the 
decision of someone who has been authorised to make decisions for a 
person who lacks capacity to make such decision for themselves. For 
instance, if someone goes against the decision of an attorney acting 
under a Lasting Power of Attorney (LPA) (see chapter 7) or a deputy 
appointed by the Court of Protection (see chapter 8), they will not be 
protected under section 5.
25  These are listed in the Department of Health’s draft illustrative Code of Practice guidance 
about the proposed safeguards. www.dh.gov.uk/assetRoot/04/14/17/64/04141764.pdf
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Mental Capacity Act Code of Practice
6.55   Attorneys and deputies must only make decisions within the scope of 
the authority of the LPA or court order. Sometimes carers or healthcare 
Chapter 6
and social care staff might feel that an attorney or deputy is making 
decisions they should not be making, or that are not in a person’s best 
What protection 
interests. If this is the case, and the disagreement cannot be settled 
does the Act 
any other way, either the carers, the staff or the attorney or deputy can 
offer for people 
apply to the Court of Protection. If the dispute concerns the provision 
providing care or 
of medical treatment, medical staff can still give life-sustaining 
treatment?
treatment, or treatment which stops a person’s condition getting 
seriously worse, while the court is coming to a decision (section 6(6)).
Who can pay for goods or services?
6.56   Carers may have to spend money on behalf of someone who lacks 
capacity to purchase necessary goods or services. For example, they 
may need to pay for a milk delivery or for a chiropodist to provide a 
service at the person’s home. In some cases, they might have to pay 
for more costly arrangements such as house repairs or organising a 
holiday. Carers are likely to be protected from liability if their actions are 
properly taken under section 5, and in the best interests of the person 
who lacks capacity.
6.57   In general, a contract entered into by a person who lacks capacity 
to make the contract cannot be enforced if the other person knows, 
or must be taken to have known, of the lack of capacity. Section 7 
of the Act modifi es this rule and states that where the contract is for 
‘necessary’ goods or services for a person who lacks capacity to make 
the arrangements for themselves, that person must pay a reasonable 
price for them.
What are necessary goods and services?
6.58  ‘Necessary’ means something that is suitable to the person’s condition 
in life (their place in society, rather than any mental or physical 
condition) and their actual requirements when the goods or services 
are provided (section 7(2)). The aim is to make sure that people can 
enjoy a similar standard of living and way of life to those they had 
before lacking capacity. For example, if a person who now lacks 
capacity previously chose to buy expensive designer clothes, these are 
still necessary goods – as long as they can still afford them. But they 
would not be necessary for a person who always wore cheap clothes, 
no matter how wealthy they were.
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6.59   Goods are not necessary if the person already has a suffi cient supply 
of them. For example, buying one or two new pairs of shoes for a 
person who lacks capacity could be necessary. But a dozen pairs 
would probably not be necessary.
How should payments be arranged?
6.60  If a person lacks capacity to arrange for payment for necessary goods 
and services, sections 5 and 8 allow a carer to arrange payment on 
their behalf.
6.61   The carer must fi rst take reasonable steps to check whether a person 
can arrange for payment themselves, or has the capacity to consent to 
the carer doing it for them. If the person lacks the capacity to consent 
or pay themselves, the carer must decide what goods or services 
would be necessary for the person and in their best interests. The carer 
can then lawfully deal with payment for those goods and services in 
one of three ways:
•  If neither the carer nor the person who lacks capacity can produce 
the necessary funds, the carer may promise that the person who 
lacks capacity will pay. A supplier may not be happy with this, or the 
carer may be worried that they will be held responsible for any debt. 
In such cases, the carer must follow the formal steps in paragraphs 
6.62–6.66 below.
•  If the person who lacks capacity has cash, the carer may use that 
money to pay for goods or services (for example, to pay the milkman 
or the hairdresser).
•  The carer may choose to pay for the goods or services with their 
own money. The person who lacks capacity must pay them back. 
This may involve using cash in the person’s possession or running 
up an IOU. (This is not appropriate for paid care workers, whose 
contracts might stop them handling their clients’ money.) The carer 
must follow formal steps to get money held in a bank or building 
society account (see paragraphs 6.63–6.66 below).
6.62   Carers should keep bills, receipts and other proof of payment when 
paying for goods and services. They will need these documents when 
asking to get money back. Keeping appropriate fi nancial records and 
documentation is a requirement of the national minimum standards for 
care homes or domiciliary care agencies.
Access to a person’s assets
6.63   The Act does not give a carer or care worker access to a person’s 
income or assets. Nor does it allow them to sell the person’s property.
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6.64   Anyone wanting access to money in a person’s bank or building 
society will need formal legal authority. They will also need legal 
Chapter 6
authority to sell a person’s property. Such authority could be given 
in a Lasting Power of Attorney (LPA) appointing an attorney to deal 
What protection 
with property and affairs, or in an order of the Court of Protection 
does the Act 
(either a single decision of the court or an order appointing a deputy 
offer for people 
to make fi nancial decisions for the person who lacks capacity to make 
providing care or 
such decisions).
treatment?
Scenario: Being granted access to a person’s assets
A storm blew some tiles off the roof of a house owned by Gordon, a 
man with Alzheimer’s disease. He lacks capacity to arrange for repairs 
and claim on his insurance. The repairs are likely to be costly.
Gordon’s son decides to organise the repairs, and he agrees to pay 
because his father doesn’t have enough cash available. The son could 
then apply to the Court of Protection for authority to claim insurance on 
his father’s behalf and for him to be reimbursed from his father’s bank 
account to cover the cost of the repairs once the insurance payment 
had been received.
6.65   Sometimes another person will already have legal control of the 
fi nances and property of a person who lacks capacity to manage their 
own affairs. This could be an attorney acting under a registered EPA 
or an appropriate LPA (see chapter 7) or a deputy appointed by the 
Court of Protection (see chapter 8). Or it could be someone (usually a 
carer) that has the right to act as an ‘appointee’ (under Social Security 
Regulations) and claim benefi ts for a person who lacks capacity to 
make their own claim and use the money on the person’s behalf. But 
an appointee cannot deal with other assets or savings from sources 
other than benefi ts.
6.66  Section 6(6) makes clear that a family carer or other carer cannot make 
arrangements for goods or services to be supplied to a person who 
lacks capacity if this confl icts with a decision made by someone who 
has formal powers over the person’s money and property, such as an 
attorney or deputy acting within the scope of their authority. Where 
there is no confl ict and the carer has paid for necessary goods and 
services the carer may ask for money back from an attorney, a deputy 
or where relevant, an appointee.
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7 What does the Act say about 
Lasting Powers of Attorney?
This chapter explains what Lasting Powers of Attorney (LPAs) are and how 
they should be used. It also sets out:
•  how LPAs differ from Enduring Powers of Attorney (EPAs)
•  the types of decisions that people can appoint attorneys to make (attorneys 
are also called ‘donees’ in the Act)
•  situations in which an LPA can and cannot be used
•  the duties and responsibilities of attorneys
•  the standards required of attorneys, and
•  measures for dealing with attorneys who don’t meet appropriate standards.
This chapter also explains what should happen to EPAs that were made 
before the Act comes into force.
In this chapter, as throughout the Code, a person’s capacity (or lack 
of capacity) refers specifically to their capacity to make a particular 
decision at the time it needs to be made.
Quick summary
Anyone asked to be an attorney should:
•  consider whether they have the skills and ability to act as an attorney 
(especially if it is for a property and affairs LPA)
•  ask themselves whether they actually want to be an attorney and take on 
the duties and responsibilities of the role.
Before acting under an LPA, attorneys must:
•  make sure the LPA has been registered with the Public Guardian
•  take all practical and appropriate steps to help the donor make the 
particular decision for themselves.
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When acting under an LPA:
Chapter 7
•  make sure that the Act’s statutory principles are followed
•  check whether the person has the capacity to make that particular decision 
What does the 
for themselves. If they do:
Act say about 
   –  
a personal welfare LPA cannot be used – the person must make the 
Lasting Powers 
of Attorney?
decision
   –  
a property and affairs LPA can be used even if the person has capacity 
to make the decision, unless they have stated in the LPA that they should 
make decisions for themselves when they have capacity to do so.
At all times, remember:
•  anything done under the authority of the LPA must be in the person’s 
best interests  
•  anyone acting as an attorney must have regard to guidance in this Code of 
Practice that is relevant to the decision that is to be made
•  attorneys must fulfi l their responsibilities and duties to the person who 
lacks capacity.
What is a Lasting Power of Attorney (LPA)?
7.1 
Sometimes one person will want to give another person authority 
to make a decision on their behalf. A power of attorney is a legal 
document that allows them to do so. Under a power of attorney, the 
chosen person (the attorney or donee) can make decisions that are as 
valid as one made by the person (the donor).
7.2 
Before the Enduring Powers of Attorney Act 1985, every power of 
attorney automatically became invalid as soon as the donor lacked 
the capacity to make their own decision. But that Act introduced the 
Enduring Power of Attorney (EPA). An EPA allows an attorney to make 
decisions about property and fi nancial affairs even if the donor lacks 
capacity to manage their own affairs.
7.3 
The Mental Capacity Act replaces the EPA with the Lasting Power 
of Attorney (LPA). It also increases the range of different types of 
decisions that people can authorise others to make on their behalf. As 
well as property and affairs (including fi nancial matters), LPAs can also 
cover personal welfare (including healthcare and consent to medical 
treatment) for people who lack capacity to make such decisions 
for themselves.
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7.4 
The donor can choose one person or several to make different kinds 
of decisions. See paragraphs 7.21–7.31 for more information about 
personal welfare LPAs. See paragraphs 7.32–7.42 for more information 
about LPAs on property and affairs.
How do LPAs compare to EPAs?
7.5  
There are a number of differences between LPAs and EPAs. These are 
summarised as follows:
•  EPAs only cover property and affairs. LPAs can also cover personal 
welfare.
•  Donors must use the relevant specifi c form (prescribed in 
regulations) to make EPAs and LPAs. There are different forms for 
EPAs, personal welfare LPAs and property and affairs LPAs.
•  EPAs must be registered with the Public Guardian when the donor 
can no longer manage their own affairs (or when they start to lose 
capacity). But LPAs can be registered at any time before they are 
used – before or after the donor lacks capacity to make particular 
decisions that the LPA covers. If the LPA is not registered, it can’t 
be used.
•  EPAs can be used while the donor still has capacity to manage 
their own property and affairs, as can property and affairs LPAs, so 
long as the donor does not say otherwise in the LPA. But personal 
welfare LPAs can only be used once the donor lacks capacity to 
make the welfare decision in question.
•  Once the Act comes into force, only LPAs can be made but existing 
EPAs will continue to be valid. There will be different laws and 
procedures for EPAs and LPAs.
•  Attorneys making decisions under a registered EPA or LPA must 
follow the Act’s principles and act in the best interests of the donor.
•  The duties under the law of agency apply to attorneys of both EPAs 
and LPAs (see paragraphs 7.58–7.68 below).
•  Decisions that the courts have made about EPAs may also affect 
how people use LPAs.
•  Attorneys acting under an LPA have a legal duty to have regard to 
the guidance in this Code of Practice. EPA attorneys do not. But the 
Code’s guidance will still be helpful to them.
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How does a donor create an LPA?
Chapter 7
7.6 
The donor must also follow the right procedures for creating and 
registering an LPA, as set out below. Otherwise the LPA might not be 
What does the 
valid. It is not always necessary to get legal advice. But it is a good 
Act say about 
idea for certain cases (for example, if the donor’s circumstances are 
Lasting Powers 
complicated).
of Attorney?
7.7 
Only adults aged 18 or over can make an LPA, and they can only make 
an LPA if they have the capacity to do so. For an LPA to be valid:
•  the LPA must be a written document set out in the statutory form 
prescribed by regulations26
•  the document must include prescribed information about the nature 
and effect of the LPA (as set out in the regulations)
•  the donor must sign a statement saying that they have read the 
prescribed information (or somebody has read it to them) and that 
they want the LPA to apply when they no longer have capacity
•  the document must name people (not any of the attorneys) who 
should be told about an application to register the LPA, or it should 
say that there is no-one they wish to be told
•  the attorneys must sign a statement saying that they have read the 
prescribed information and that they understand their duties – in 
particular the duty to act in the donor’s best interests
•  the document must include a certifi cate completed by an 
independent third party,27 confi rming that:
 
 
–   in their opinion, the donor understands the LPA’s purpose
 
 
–   nobody used fraud or undue pressure to trick or force the 
donor into making the LPA and
 
 
–   there is nothing to stop the LPA being created.
Who can be an attorney?
7.8 
A donor should think carefully before choosing someone to be 
their attorney. An attorney should be someone who is trustworthy, 
competent and reliable. They should have the skills and ability to carry 
out the necessary tasks.
26  The prescribed forms will be available from the Offi ce of the Public Guardian (OPG) or from 
legal stationers.
27  Details of who may and who may not be a certifi cate provider will be available in 
regulations. The OPG will produce guidance for certifi cate providers on their role.
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7.9  
Attorneys must be at least 18 years of age. For property and affairs 
LPAs, the attorney could be either:
•  an individual (as long as they are not bankrupt at the time the LPA is 
made), or
•  a trust corporation (often parts of banks or other fi nancial 
institutions).
 
 If an attorney nominated under a property and affairs LPA becomes 
bankrupt at any point, they will no longer be allowed to act as an 
attorney for property and affairs. People who are bankrupt can still act 
as an attorney for personal welfare LPAs.
7.10  The donor must name an individual rather than a job title in a company 
or organisation, (for example, ‘The Director of Adult Services’ or ‘my 
solicitor’ would not be suffi cient). A paid care worker (such as a care 
home manager) should not agree to act as an attorney, apart from in 
unusual circumstances (for example, if they are the only close relative 
of the donor).
7.11  Section 10(4) of the Act allows the donor to appoint two or more 
attorneys and to specify whether they should act ‘jointly’, ‘jointly 
and severally’, or ‘jointly in respect of some matters and jointly and 
severally in respect of others’.
•  Joint attorneys must always act together. All attorneys must agree 
decisions and sign any relevant documents.
•  Joint and several attorneys can act together but may also act 
independently if they wish. Any action taken by any attorney alone is 
as valid as if they were the only attorney.
7.12   The donor may want to appoint attorneys to act jointly in some matters 
but jointly and severally in others. For example, a donor could choose 
to appoint two or more fi nancial attorneys jointly and severally. But 
they might say then when selling the donor’s house, the attorneys 
must act jointly. The donor may appoint welfare attorneys to act 
jointly and severally but specify that they must act jointly in relation to 
giving consent to surgery. If a donor who has appointed two or more 
attorneys does not specify how they should act, they must always act 
jointly (section 10(5)).
7.13   Section 10(8) says that donors may choose to name replacement 
attorneys to take over the duties in certain circumstances (for example, 
in the event of an attorney’s death). The donor may name a specifi c 
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attorney to be replaced, or the replacements can take over from any 
attorney, if necessary. Donors cannot give their attorneys the right to 
Chapter 7
appoint a substitute or successor.
How should somebody register and use an LPA?
What does the 
Act say about 
Lasting Powers 
7.14   An LPA must be registered with the Offi ce of the Public Guardian (OPG) 
of Attorney?
before it can be used. An unregistered LPA will not give the attorney 
any legal powers to make a decision for the donor. The donor can 
register the LPA while they are still capable, or the attorney can apply 
to register the LPA at any time.
7.15   There are advantages in registering the LPA soon after the donor 
makes it (for example, to ensure that there is no delay when the 
LPA needs to be used). But if this has not been done, an LPA can 
be registered after the donor lacks the capacity to make a decision 
covered by the LPA.
7.16   If an LPA is unregistered, attorneys must register it before making any 
decisions under the LPA. If the LPA has been registered but not used 
for some time, the attorney should tell the OPG when they begin to 
act under it – so that the attorney can be sent relevant, up-to-date 
information about the rules governing LPAs.
7.17   While they still have capacity, donors should let the OPG know of 
permanent changes of address for the donor or the attorney or any 
other changes in circumstances. If the donor no longer has capacity 
to do this, attorneys should report any such changes to the OPG. 
Examples include an attorney of a property and affairs LPA becoming 
bankrupt or the ending of a marriage between the donor and their 
attorney. This will help keep OPG records up to date, and will make 
sure that attorneys do not make decisions that they no longer have the 
authority to make. 
What guidance should an attorney follow?
7.18   Section 9(4) states that attorneys must meet the requirements set out 
in the Act. Most importantly, they have to follow the statutory principles 
(section 1) and make decisions in the best interests of the person 
who lacks capacity (section 4). They must also respect any conditions 
or restrictions that the LPA document contains. See chapter 2 for 
guidance on how to apply the Act’s principles. 
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7.19   Chapter 3 gives suggestions of ways to help people make their own 
decisions in accordance with the Act’s second principle. Attorneys 
should also refer to the guidance in chapter 4 when assessing the 
donor’s capacity to make particular decisions, and in particular, should 
follow the steps suggested for establishing a ‘reasonable belief’ that 
the donor lacks capacity (see paragraphs 4.44–4.45). Assessments of 
capacity or best interests must not be based merely on:
•  a donor’s age or appearance, or
• unjustifi ed assumptions about any condition they might have or their 
behaviour.
7.20  When deciding what is in the donor’s best interests, attorneys should 
refer to the guidance in chapter 5. In particular, they must consider 
the donor’s past and present wishes and feelings, beliefs and values. 
Where practical and appropriate, they should consult with:
•  anyone involved in caring for the donor
•  close relatives and anyone else with an interest in their welfare
•  other attorneys appointed by the donor.
See paragraphs 7.52–7.68 for a description of an attorney’s duties.
Scenario: Making decisions in a donor’s best interests
Mr Young has been a member of the Green Party for a long time. He 
has appointed his solicitor as his attorney under a property and affairs 
LPA. But Mr Young did not state in the LPA that investments made on 
his behalf must be ethical investments. When the attorney assesses 
his client’s best interests, however, the attorney considers the donor’s 
past wishes, values and beliefs. He makes sure that he only invests in 
companies that are socially and environmentally responsible.
What decisions can an LPA attorney make?
Personal welfare LPAs
7.21  LPAs can be used to appoint attorneys to make decisions about 
personal welfare, which can include healthcare and medical treatment 
decisions. Personal welfare LPAs might include decisions about:
•  where the donor should live and who they should live with
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Mental Capacity Act Code of Practice
•  the donor’s day-to-day care, including diet and dress
•  who the donor may have contact with
Chapter 7
•  consenting to or refusing medical examination and treatment on the 
donor’s behalf
What does the 
Act say about 
•  arrangements needed for the donor to be given medical, dental or 
Lasting Powers 
optical treatment
of Attorney?
•  assessments for and provision of community care services
•  whether the donor should take part in social activities, leisure 
activities, education or training
•  the donor’s personal correspondence and papers
•  rights of access to personal information about the donor, or
•  complaints about the donor’s care or treatment.
7.22   The standard form for personal welfare LPAs allows attorneys to make 
decisions about anything that relates to the donor’s personal welfare. 
But donors can add restrictions or conditions to areas where they 
would not wish the attorney to have the power to act. For example, 
a donor might only want an attorney to make decisions about their 
social care and not their healthcare. There are particular rules for 
LPAs authorising an attorney to make decisions about life-sustaining 
treatment (see paragraphs 7.30–7.31 below).
7.23  A general personal welfare LPA gives the attorney the right to make 
all of the decisions set out above although this is not a full list of the 
actions they can take or decisions they can make. However, a personal 
welfare LPA can only be used at a time when the donor lacks capacity 
to make a specifi c welfare decision.  
Scenario: Denying attorneys the right to make certain decisions
Mrs Hutchison is in the early stages of Alzheimer’s disease. She is 
anxious to get all her affairs in order while she still has capacity to do 
so. She makes a personal welfare LPA, appointing her daughter as 
attorney. But Mrs Hutchison knows that her daughter doesn’t always 
get on with some members of the family – and she wouldn’t want her 
daughter to stop those relatives from seeing her.
She states in the LPA that her attorney does not have the authority to 
decide who can contact her or visit her. If her daughter wants to prevent 
anyone having contact with Mrs Hutchison, she must ask the Court of 
Protection to decide.
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7.24  Before making a decision under a personal welfare LPA, the attorney 
must be sure that:
•  the LPA has been registered with the OPG
•  the donor lacks the capacity to make the particular decision or 
the attorney reasonably believes that the donor lacks capacity to 
take the decisions covered by the LPA (having applied the Act’s 
principles), and
•  they are making the decision in the donor’s best interests.
7.25   When healthcare or social care staff are involved in preparing a care 
plan for someone who has appointed a personal welfare attorney, they 
must fi rst assess whether the donor has capacity to agree to the care 
plan or to parts of it. If the donor lacks capacity, professionals must 
then consult the attorney and get their agreement to the care plan. 
They will also need to consult the attorney when considering what 
action is in the person’s best interests.
Personal welfare LPAs that authorise an attorney to make healthcare 
decisions

7.26   A personal welfare LPA allows attorneys to make decisions to accept 
or refuse healthcare or treatment unless the donor has stated clearly in 
the LPA that they do not want the attorney to make these decisions.
7.27   Even where the LPA includes healthcare decisions, attorneys do not 
have the right to consent to or refuse treatment in situations where:
•  the donor has capacity to make the particular healthcare 
decision (section 11(7)(a))
An attorney has no decision-making power if the donor can make 
their own treatment decisions.
•  the donor has made an advance decision to refuse the proposed 
treatment (section 11(7)(b))
An attorney cannot consent to treatment if the donor has made a 
valid and applicable advance decision to refuse a specifi c treatment 
(see chapter 9). But if the donor made an LPA after the advance 
decision, and gave the attorney the right to consent to or refuse 
the treatment, the attorney can choose not to follow the advance 
decision.
•  a decision relates to life-sustaining treatment (section 11(7)(c))
An attorney has no power to consent to or refuse life-sustaining 
treatment, unless the LPA document expressly authorises this 
(See paragraphs 7.30–7.31 below.)
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•  the donor is detained under the Mental Health Act (section 28)
An attorney cannot consent to or refuse treatment for a mental 
Chapter 7
disorder for a patient detained under the Mental Health Act 1983 
(see also chapter 13).
What does the 
7.28   LPAs cannot give attorneys the power to demand specifi c forms of 
Act say about 
Lasting Powers 
medical treatment that healthcare staff do not believe are necessary or 
of Attorney?
appropriate for the donor’s particular condition.
7.29   Attorneys must always follow the Act’s principles and make decisions 
in the donor’s best interests. If healthcare staff disagree with the 
attorney’s assessment of best interests, they should discuss the case 
with other medical experts and/or get a formal second opinion. Then 
they should discuss the matter further with the attorney. If they cannot 
settle the disagreement, they can apply to the Court of Protection (see 
paragraphs 7.45–7.49 below). While the court is coming to a decision, 
healthcare staff can give life-sustaining treatment to prolong the 
donor’s life or stop their condition getting worse.
Personal welfare LPAs that authorise an attorney to make decisions 
about life-sustaining treatment

7.30   An attorney can only consent to or refuse life-sustaining treatment on 
behalf of the donor if, when making the LPA, the donor has specifi cally 
stated in the LPA document that they want the attorney to have this 
authority.
7.31   As with all decisions, an attorney must act in the donor’s best interests 
when making decisions about such treatment. This will involve applying 
the best interests checklist (see chapter 5) and consulting with carers, 
family members and others interested in the donor’s welfare. In 
particular, the attorney must not be motivated in any way by the desire 
to bring about the donor’s death (see paragraphs 5.29–5.36). Anyone 
who doubts that the attorney is acting in the donor’s best interests can 
apply to the Court of Protection for a decision.
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Scenario: Making decisions about life-sustaining treatment
Mrs Joshi has never trusted doctors. She prefers to rely on alternative 
therapies. Because she saw her father suffer after invasive treatment for 
cancer, she is clear that she would refuse such treatment herself.
She is diagnosed with cancer and discusses her wishes with her 
husband. Mrs Joshi knows that he would respect her wishes if he ever 
had to make a decision about her treatment. She makes a personal 
welfare LPA appointing him as her attorney with authority to make all 
her welfare and healthcare decisions. She includes a specific statement 
authorising him to consent to or refuse life-sustaining treatment.
He will then be able to consider her views and make decisions about 
treatment in her best interests if she later lacks capacity to make those 
decisions herself.
Property and affairs LPAs
7.32   A donor can make an LPA giving an attorney the right to make 
decisions about property and affairs (including fi nancial matters). 
Unless the donor states otherwise, once the LPA is registered, the 
attorney is allowed to make all decisions about the donor’s property 
and affairs even if the donor still has capacity to make the decisions for 
themselves. In this situation, the LPA will continue to apply when the 
donor no longer has capacity.
7.33   Alternatively a donor can state in the LPA document that the LPA 
should only apply when they lack capacity to make a relevant decision. 
It is the donor’s responsibility to decide how their capacity should 
then be assessed. For example, the donor may trust the attorney to 
carry out an assessment, or they may say that the LPA only applies if 
their GP or another doctor confi rms in writing that they lack capacity 
to make specifi c decisions about property or fi nances. Financial 
institutions may wish to see the written confi rmation before recognising 
the attorney’s authority to act under the LPA.
7.34   The fact that someone has made a property and affairs LPA does not 
mean that they cannot continue to carry out fi nancial transactions for 
themselves. The donor may have full capacity, but perhaps anticipates 
that they may lack capacity at some future time. Or they may have 
fl uctuating or partial capacity and therefore be able to make some 
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Mental Capacity Act Code of Practice
decisions (or at some times), but need an attorney to make others (or at 
other times). The attorney should allow and encourage the donor to do 
Chapter 7
as much as possible, and should only act when the donor asks them to 
or to make those decisions the donor lacks capacity to make. However, 
in other cases, the donor may wish to hand over responsibility for all 
What does the 
decisions to the attorney, even those they still have capacity to make.
Act say about 
Lasting Powers 
of Attorney?
7.35   If the donor restricts the decisions an attorney can make, banks may 
ask the attorney to sign a declaration that protects the bank from 
liability if the attorney misuses the account.28
7.36   If a donor does not restrict decisions the attorney can make, the 
attorney will be able to decide on any or all of the person’s property 
and fi nancial affairs. This might include:
•  buying or selling property
•  opening, closing or operating any bank, building society or other 
account
•  giving access to the donor’s fi nancial information
•  claiming, receiving and using (on the donor’s behalf) all benefi ts, 
pensions, allowances and rebates (unless the Department for Work 
and Pensions has already appointed someone and everyone is 
happy for this to continue)
•  receiving any income, inheritance or other entitlement on behalf of 
the donor
•  dealing with the donor’s tax affairs
•  paying the donor’s mortgage, rent and household expenses
•  insuring, maintaining and repairing the donor’s property
•  investing the donor’s savings
•  making limited gifts on the donor’s behalf (but see paragraphs 
7.40–7.42 below)
•  paying for private medical care and residential care or nursing home 
fees
•  applying for any entitlement to funding for NHS care, social care or 
adaptations
•  using the donor’s money to buy a vehicle or any equipment or other 
help they need
•  repaying interest and capital on any loan taken out by the donor.
28  See British Banking Association’s guidance for bank staff on ‘Banking for mentally 
incapacitated and learning disabled customers’.
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Mental Capacity Act Code of Practice
7.37   A general property and affairs LPA will allow the attorney to carry out 
any or all of the actions above (although this is not a full list of the 
actions they can take). However, the donor may want to specify the 
types of powers they wish the attorney to have, or to exclude particular 
types of decisions. If the donor holds any assets as trustee, they 
should get legal advice about how the LPA may affect this.
7.38   The attorney must make these decisions personally and cannot 
generally give someone else authority to carry out their duties (see 
paragraphs 7.61–7.62 below). But if the donor wants the attorney to be 
able to give authority to a specialist to make specifi c decisions, they 
need to state this clearly in the LPA document (for example, appointing 
an investment manager to make particular investment decisions).
7.39   Donors may like to appoint someone (perhaps a family member or a 
professional) to go through their accounts with the attorney from time 
to time. This might help to reassure donors that somebody will check 
their fi nancial affairs when they lack capacity to do so. It may also 
be helpful for attorneys to arrange a regular check that everything is 
being done properly. The donor should ensure that the person is willing 
to carry out this role and is prepared to ask for the accounts if the 
attorney does not provide them. They should include this arrangement 
in the signed LPA document. The LPA should also say whether the 
person can charge a fee for this service.
What gifts can an attorney make under a property and affairs LPA?
7.40   An attorney can only make gifts of the donor’s money or belongings to 
people who are related to or connected with the donor (including the 
attorney) on specifi c occasions, including:
•  births or birthdays
•  weddings or wedding anniversaries
•  civil partnership ceremonies or anniversaries, or
•  any other occasion when families, friends or associates usually give 
presents (section 12(3)(b)).
7.41   If the donor previously made donations to any charity regularly or from 
time to time, the attorney can make donations from the person’s funds. 
This also applies if the donor could have been expected to make such 
payments (section 12(2)(b)). But the value of any gift or donation must 
be reasonable and take into account the size of the donor’s estate. 
For example, it would not be reasonable to buy expensive gifts at 
Christmas if the donor was living on modest means and had to do 
without essential items in order to pay for them.
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7.42   The donor cannot use the LPA to make more extensive gifts than those 
allowed under section 12 of the Act. But they can impose stricter 
Chapter 7
conditions or restrictions on the attorney’s powers to make gifts. They 
should state these restrictions clearly in the LPA document when they 
are creating it. When deciding on appropriate gifts, the attorney should 
What does the 
consider the donor’s wishes and feelings to work out what would be 
Act say about 
Lasting Powers 
in the donor’s best interests. The attorney can apply to the Court of 
of Attorney?
Protection for permission to make gifts that are not included in the LPA 
(for example, for tax planning purposes).
Are there any other restrictions on attorneys’ powers?
7.43   Attorneys are not protected from liability if they do something that is 
intended to restrain the donor, unless:
•  the attorney reasonably believes that the donor lacks capacity to 
make the decision in question, and
•  the attorney reasonably believes that restraint is necessary to 
prevent harm to the donor, and
•  the type of restraint used is in proportion to the likelihood and the 
seriousness of the harm.
 
 If an attorney needs to make a decision or take action which may 
involve the use of restraint, they should take account of the guidance 
set out in chapter 6.
7.44   Attorneys have no authority to take actions that result in the donor 
being deprived of their liberty. Any deprivation of liberty will only be 
lawful if this has been properly authorised and there is other protection 
available for the person who lacks capacity. An example would be 
the protection around detention under the Mental Health Act 1983 
(see chapter 13) or a court ruling. Chapter 6 gives more guidance on 
working out whether an action is restraint or a deprivation of liberty.
What powers does the Court of Protection have over LPAs?
7.45   The Court of Protection has a range of powers to:
•  determine whether an LPA is valid
•  give directions about using the LPA, and
•  to remove an attorney (for example, if the attorney does not act in 
the best interests of the donor).
 
Chapter 8 gives more information about the Court of Protection’s 
powers.
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7.46   If somebody has doubts over whether an LPA is valid, they can ask the 
court to decide whether the LPA:
•  meets the Act’s requirements
•  has been revoked (cancelled) by the donor, or
•  has come to an end for any other reason.
7.47   The court can also stop somebody registering an LPA or rule that an 
LPA is invalid if:
•  the donor made the LPA as a result of undue pressure or fraud, or
•  the attorney behaves, has behaved or is planning to behave in a way 
that goes against their duties or is not in the donor’s best interests.
7.48   The court can also clarify an LPA’s meaning, if it is not clear, and it 
can tell attorneys how they should use an LPA. If an attorney thinks 
that an LPA does not give them enough powers, they can ask the 
court to extend their powers – if the donor no longer has capacity to 
authorise this. The court can also authorise an attorney to give a gift 
that the Act does not normally allow (section 12(2)), if it is in the donor’s 
best interests.
7.49   All attorneys should keep records of their dealings with the donor’s 
affairs (see also paragraph 7.67 below). The court can order attorneys 
to produce records (for example, fi nancial accounts) and to provide 
specifi c reports, information or documentation. If somebody has 
concerns about an attorney’s payment or expenses, the court could 
resolve the matter.
What responsibilities do attorneys have?
7.50   A donor cannot insist on somebody agreeing to become an attorney. 
It is down to the proposed attorney to decide whether to take on this 
responsibility. When an attorney accepts the role by signing the LPA 
document, this is confi rmation that they are willing to act under the LPA 
once it is registered. An attorney can withdraw from the appointment 
if they ever become unable or unwilling to act, but if the LPA has been 
registered they must follow the correct procedures for withdrawing. 
(see paragraph 7.66 below).
7.51   Once the attorney starts to act under an LPA, they must meet certain 
standards. If they don’t carry out the duties below, they could be 
removed from the role. In some circumstances they could face charges 
of fraud or negligence.
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What duties does the Act impose?
Chapter 7
7.52   Attorneys acting under an LPA have a duty to:
•  follow the Act’s statutory principles (see chapter 2)
What does the 
Act say about 
•  make decisions in the donor’s best interests
Lasting Powers 
of Attorney?
•  have regard to the guidance in the Code of Practice
•  only make those decisions the LPA gives them authority to make.
Principles and best interests
7.53  Attorneys must act in accordance with the Act’s statutory principles 
(section 1) and in the best interests of the donor (the steps for working 
out best interests are set out in section 4). In particular, attorneys must 
consider whether the donor has capacity to make the decision for 
themselves. If not, they should consider whether the donor is likely 
to regain capacity to make the decision in the future. If so, it may be 
possible to delay the decision until the donor can make it.
The Code of Practice
7.54   As well as this chapter, attorneys should pay special attention to the 
following guidance set out in the Code:
•  chapter 2, which sets out how the Act’s principles should be applied
•  chapter 3, which describes the steps which can be taken to try to 
help the person make decisions for themselves
•  chapter 4, which describes the Act’s defi nition of lack of capacity 
and gives guidance on assessing capacity, and
•  chapter 5, which gives guidance on working out the donor’s 
best interests.
7.55   In some circumstances, attorneys might also fi nd it useful to refer to 
guidance in:
•  chapter 6, which explains when attorneys who have caring 
responsibilities may have protection from liability and gives 
guidance on the few circumstances when the Act allows restraint in 
connection with care and treatment
•  chapter 8, which gives a summary of the Court of Protection’s 
powers relating to LPAs
•  chapter 9, which explains how LPAs may be affected if the donor 
has made an advance decision to refuse treatment, and
•  chapter 15, which describes ways to settle disagreements.
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Only making decisions covered by an LPA
7.56   A personal welfare attorney has no authority to make decisions about 
a donor’s property and affairs (such as their fi nances). A property 
and affairs attorney has no authority in decisions about a donor’s 
personal care. (But the same person could be appointed in separate 
LPAs to carry out both these roles.) Under any LPA, the attorney will 
have authority in a wide range of decisions. But if a donor includes 
restrictions in the LPA document, this will limit the attorney’s authority 
(section 9(4)(b)). If the attorney thinks that they need greater powers, 
they can apply to the Court of Protection which may decide to give the 
attorney the authority required or alternatively to appoint the attorney 
as a deputy with the necessary powers (see chapter 8).
7.57   It is good practice for decision-makers to consult attorneys about 
any decision or action, whether or not it is covered by the LPA. This is 
because an attorney is likely to have known the donor for some time 
and may have important information about their wishes and feelings. 
Researchers can also consult attorneys if they are thinking about 
involving the donor in research (see chapter 11).
Scenario: Consulting attorneys
Mr Varadi makes a personal welfare LPA appointing his son and 
daughter as his joint attorneys. He also makes a property and affairs 
LPA, appointing his son and his solicitor to act jointly and severally. He 
registers the property and affairs LPA straight away, so his attorneys can 
help with financial decisions.
Two years later, Mr Varadi has a stroke, is unable to speak and has 
difficulty communicating his wishes. He also lacks the capacity to 
make decisions about treatment. The attorneys apply to register the 
personal welfare LPA. Both feel that they should delay decisions about 
Mr Varadi’s future care, because he might regain capacity to make the 
decisions himself. But they agree that some decisions cannot wait.
Although the solicitor has no authority to make welfare decisions, the 
welfare attorneys consult him about their father’s best interests. They 
speak to him about immediate treatment decisions and their suggestion 
to delay making decisions about his future care. Similarly, the property 
and affairs attorneys consult the daughter about the financial decisions 
that Mr Varadi does not have the capacity to make himself.
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What are an attorney’s other duties?
Chapter 7
7.58   An attorney appointed under an LPA is acting as the chosen agent 
of the donor and therefore, under the law of agency, the attorney has 
certain duties towards the donor. An attorney takes on a role which 
What does the 
carries a great deal of power, which they must use carefully and 
Act say about 
Lasting Powers 
responsibly. They have a duty to:
of Attorney?
•  apply certain standards of care and skill (duty of care) when 
making decisions
•  carry out the donor’s instructions
•  not take advantage of their position and not benefi t themselves, 
but benefi t the donor (fi duciary duty)
•  not delegate decisions, unless authorised to do so
•  act in good faith
• respect confi dentiality
•  comply with the directions of the Court of Protection
•  not give up the role without telling the donor and the court.
 
In relation to property and affairs LPAs, they have a duty to:
• keep accounts
•  keep the donor’s money and property separate from their own.
Duty of care
7.59   ‘Duty of care’ means applying a certain standard of care and skill 
– depending on whether the attorney is paid for their services or holds 
relevant professional qualifi cations.
•  Attorneys who are not being paid must apply the same care, skill 
and diligence they would use to make decisions about their own 
life. An attorney who claims to have particular skills or qualifi cations 
must show greater skill in those particular areas than someone who 
does not make such claims.
•  If attorneys are being paid for their services, they should 
demonstrate a higher degree of care and skill.
•  Attorneys who undertake their duties in the course of their 
professional work (such as solicitors or corporate trustees) must 
display professional competence and follow their profession’s rules 
and standards.
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Fiduciary duty
7.60  A 
fi duciary duty means attorneys must not take advantage of their 
position. Nor should they put themselves in a position where their 
personal interests confl ict with their duties. They also must not allow 
any other infl uences to affect the way in which they act as an attorney. 
Decisions should always benefi t the donor, and not the attorney. 
Attorneys must not profi t or get any personal benefi t from their 
position, apart from receiving gifts where the Act allows it, whether 
or not it is at the donor’s expense.
Duty not to delegate
7.61   Attorneys cannot usually delegate their authority to someone else. 
They must carry out their duties personally. The attorney may seek 
professional or expert advice (for example, investment advice from 
a fi nancial adviser or advice on medical treatment from a doctor). 
But they cannot, as a general rule, allow someone else to make a 
decision that they have been appointed to make, unless this has been 
specifi cally authorised by the donor in the LPA.
7.62   In certain circumstances, attorneys may have limited powers to 
delegate (for example, through necessity or unforeseen circumstances, 
or for specifi c tasks which the donor would not have expected the 
attorney to attend to personally). But attorneys cannot usually delegate 
any decisions that rely on their discretion.
Duty of good faith
7.63   Acting in good faith means acting with honesty and integrity. For 
example, an attorney must try to make sure that their decisions do 
not go against a decision the donor made while they still had capacity 
(unless it would be in the donor’s best interests to do so).
Duty of confidentiality
7.64   Attorneys have a duty to keep the donor’s affairs confi dential, unless:
•  before they lost capacity to do so, the donor agreed that some 
personal or fi nancial information may be revealed for a particular 
purpose (for example, they have named someone they want to 
check their fi nancial accounts), or
•  there is some other good reason to release it (for example, it is in the 
public interest or the best interests of the person who lacks capacity, 
or there is a risk of harm to the donor or others).
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 In the latter circumstances, it may be advisable for the attorney to get 
legal advice. Chapter 16 gives more information about confidentiality.
Chapter 7
Duty to comply with the directions of the Court of Protection
What does the 
7.65  Under sections 22 and 23 of the Act, the Court of Protection has 
Act say about 
wide-ranging powers to decide on issues relating to the operation or 
Lasting Powers 
validity of an LPA. It can also:
of Attorney?
•  give extra authority to attorneys
•  order them to produce records (for example, fi nancial accounts), or
•  order them to provide specifi c information or documentation to 
the court.
 
Attorneys must comply with any decision or order that the court makes.
Duty not to disclaim without notifying the donor and the OPG
7.66   Once someone becomes an attorney, they cannot give up that role 
without notifying the donor and the OPG. If they decide to give up their 
role, they must follow the relevant guidance available from the OPG.
Duty to keep accounts
7.67   Property and affairs attorneys must keep accounts of transactions 
carried out on the donor’s behalf. Sometimes the Court of Protection 
will ask to see accounts. If the attorney is not a fi nancial expert and 
the donor’s affairs are relatively straightforward, a record of the donor’s 
income and expenditure (for example, through bank statements) 
may be enough. The more complicated the donor’s affairs, the more 
detailed the accounts may need to be.
Duty to keep the donor’s money and property separate
7.68   Property and affairs attorneys should usually keep the donor’s money 
and property separate from their own or anyone else’s. There may be 
occasions where donors and attorneys have agreed in the past to keep 
their money in a joint bank account (for example, if a husband is acting 
as his wife’s attorney). It might be possible to continue this under 
the LPA. But in most circumstances, attorneys must keep fi nances 
separate to avoid any possibility of mistakes or confusion.
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How does the Act protect donors from abuse?
What should someone do if they think an attorney is abusing 
their position?

7.69   Attorneys are in a position of trust, so there is always a risk of them 
abusing their position. Donors can help prevent abuse by carefully 
choosing a suitable and trustworthy attorney. But others have a role 
to play in looking out for possible signs of abuse or exploitation, and 
reporting any concerns to the OPG. The OPG will then follow this up in 
co-operation with relevant agencies.
7.70   Signs that an attorney may be exploiting the donor (or failing to act in 
the donor’s best interests) include:
•  stopping relatives or friends contacting the donor – for example, 
the attorney may prevent contact or the donor may suddenly refuse 
visits or telephone calls from family and friends for no reason
•  sudden unexplained changes in living arrangements (for example, 
someone moves in to care for a donor they’ve had little contact with)
•  not allowing healthcare or social care staff to see the donor
•  taking the donor out of hospital against medical advice, while the 
donor is having necessary medical treatment
•  unpaid bills (for example, residential care or nursing home fees)
•  an attorney opening a credit card account for the donor
•  spending money on things that are not obviously related to the 
donor’s needs
•  the attorney spending money in an unusual or extravagant way
• transferring fi nancial assets to another country.
7.71   Somebody who suspects abuse should contact the OPG immediately. 
The OPG may direct a Court of Protection Visitor to visit an attorney 
to investigate. In cases of suspected physical or sexual abuse, theft or 
serious fraud, the person should contact the police. They might also be 
able to refer the matter to the relevant local adult protection authorities.
7.72   In serious cases, the OPG will refer the matter to the Court of 
Protection. The court may revoke (cancel) the LPA or (through the OPG) 
prevent it being registered, if it decides that:
•  the LPA does not meet the legal requirements for creating an LPA
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Mental Capacity Act Code of Practice
•  the LPA has been revoked or come to an end for any other reason
•  somebody used fraud or undue pressure to get the donor to make 
Chapter 7
the LPA
•  the attorney has done something that they do not have authority to 
What does the 
do, or
Act say about 
Lasting Powers 
•  the attorney has behaved or is planning to behave in a way that is 
of Attorney?
not in the donor’s best interests.
 
 The court might then consider whether the authority previously given 
to an attorney can be managed by:
•  the court making a single decision, or
•  appointing a deputy.
What should an attorney do if they think someone else is abusing 
the donor?

7.73   An attorney who thinks someone else is abusing or exploiting the 
donor should report it to the OPG and ask for advice on what action 
they should take. They should contact the police if they suspect 
physical or sexual abuse, theft or serious fraud. They might also be 
able to refer the matter to local adult protection authorities.
7.74   Chapter 13 gives more information about protecting vulnerable people 
from abuse, ill treatment or neglect. It also discusses the duties and 
responsibilities of the various agencies involved, including the OPG and 
local authorities. In particular, it is a criminal offence (with a maximum 
penalty of fi ve years’ imprisonment, a fi ne, or both) for anyone 
(including attorneys) to wilfully neglect or ill-treat a person in their care 
who lacks capacity to make decisions for themselves (section 44).
What happens to existing EPAs once the Act comes 
into force?

7.75   Once the Act comes into force, it will not be possible to make new 
EPAs. Only LPAs can then be made.
7.76   Some donors will have created EPAs before the Act came into force 
with the expectation that their chosen attorneys will manage their 
property and affairs in the future, whether or not they have capacity to 
do so themselves.
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Mental Capacity Act Code of Practice
7.77  If donors still have capacity after the Act comes into force, they can 
cancel the EPA and make an LPA covering their property and affairs. 
They should also notify attorneys and anyone else aware of the EPA 
(for example, a bank) that they have cancelled it.
7.78   Some donors will choose not to cancel their EPA or they may already 
lack the capacity to do so. In such cases, the Act allows existing EPAs, 
whether registered or not, to continue to be valid so that attorneys can 
meet the donor’s expectations (Schedule 4). An EPA must be registered 
with the OPG when the attorney thinks the donor lacks capacity to 
manage their own affairs, or is beginning to lack capacity to do so.
7.79   EPA attorneys may fi nd guidance in this chapter helpful. In particular, 
all attorneys must comply with the duties described in paragraphs 
7.58–7.68 above. EPA attorneys can also be found liable under section 
44 of the new Act, which sets out the new criminal offences of ill 
treatment and wilful neglect. The OPG has produced guidance on EPAs 
(see Annex A for details of publications and contact information).
136

8 What is the role of the Court of 
Protection and court-appointed 
deputies?
This chapter describes the role of the Court of Protection and the role of 
court-appointed deputies. It explains the powers that the court has and how 
to make an application to the court. It also looks at how the court appoints a 
deputy to act and make decisions on behalf of someone who lacks capacity 
to make those decisions. In particular, it gives guidance on a deputy’s duties 
and the consequences of not carrying them out responsibly.
The Offi ce of the Public Guardian (OPG) produces detailed guidance for 
deputies. See the Annex for more details of the publications and how to 
get them. Further details on the court’s procedures are given in the Court of 
Protection Rules and Practice Directions issued by the court.
In this chapter, as throughout the Code, a person’s capacity (or lack 
of capacity) refers specifically to their capacity to make a particular 
decision at the time it needs to be made.
Quick summary
The Court of Protection has powers to:
•  decide whether a person has capacity to make a particular decision for 
themselves
•  make declarations, decisions or orders on fi nancial or welfare matters 
affecting people who lack capacity to make such decisions
•  appoint deputies to make decisions for people lacking capacity to make 
those decisions
•  decide whether an LPA or EPA is valid, and
•  remove deputies or attorneys who fail to carry out their duties.
Before accepting an appointment as a deputy, a person the court nominates 
should consider whether:

•  they have the skills and ability to carry out a deputy’s duties (especially in 
relation to property and affairs)
•  they actually want to take on the duties and responsibilities. 
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Mental Capacity Act Code of Practice
Anyone acting as a deputy must:
•  make sure that they only make those decisions that they are authorised to 
make by the order of the court
•  make sure that they follow the Act’s statutory principles, including:
 – 
 
considering whether the person has capacity to make a particular 
decision for themselves. If they do, the deputy should allow them to do 
so unless the person agrees that the deputy should make the decision
 – 
 
taking all possible steps to try to help a person make the particular 
decision
•  always make decisions in the person’s best interests
•  have regard to guidance in the Code of Practice that is relevant to the 
situation
• fulfi l their duties towards the person concerned (in particular the duty of 
care and fi duciary duties to respect the degree of trust placed in them by 
the court).
What is the Court of Protection?
8.1 
Section 45 of the Act sets up a specialist court, the Court of Protection, 
to deal with decision-making for adults (and children in a few cases) 
who may lack capacity to make specifi c decisions for themselves. 
The new Court of Protection replaces the old court of the same name, 
which only dealt with decisions about the property and fi nancial affairs 
of people lacking capacity to manage their own affairs. As well as 
property and affairs, the new court also deals with serious decisions 
affecting healthcare and personal welfare matters. These were 
previously dealt with by the High Court under its inherent jurisdiction.
8.2 
The new Court of Protection is a superior court of record and is able 
to establish precedent (it can set examples for future cases) and build 
up expertise in all issues related to lack of capacity. It has the same 
powers, rights, privileges and authority as the High Court. When 
reaching any decision, the court must apply all the statutory principles 
set out in section 1 of the Act. In particular, it must make a decision 
in the best interests of the person who lacks capacity to make the 
specifi c decision. There will usually be a fee for applications to 
the court.29
29  Details of the fees charged by the court, and the circumstances in which the fees may be 
waived or remitted, are available from the Offi ce of the Public Guardian (OPG).
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Mental Capacity Act Code of Practice
How can somebody make an application to the Court of 
Protection?

Chapter 8
8.3  
In most cases concerning personal welfare matters, the core principles 
What is the role 
of the Act and the processes set out in chapters 5 and 6 will be 
of the Court of 
enough to:
Protection and 
court-appointed 
•  help people take action or make decisions in the best interests of 
deputies?
someone who lacks capacity to make decisions about their own 
care or treatment, or
•  fi nd ways of settling disagreements about such actions or decisions.
 
But an application to the Court of Protection may be necessary for:
• particularly diffi cult decisions
•  disagreements that cannot be resolved in any other way (see 
chapter 15), or
•  situations where ongoing decisions may need to be made about the 
personal welfare of a person who lacks capacity to make decisions 
for themselves.
8.4  
An order of the court will usually be necessary for matters relating to 
the property and affairs (including fi nancial matters) of people who lack 
capacity to make specifi c fi nancial decisions for themselves, unless:
•  their only income is state benefi ts (see paragraph 8.36 below), or
•  they have previously made an Enduring Power of Attorney (EPA) or 
a Lasting Power of Attorney (LPA) to give somebody authority to 
manage their property and affairs (see chapter 7).
8.5  
Receivers appointed by the court before the Act commences will 
be treated as deputies. But they will keep their existing powers and 
duties. They must meet the requirements set out in the Act and, in 
particular, follow the statutory principles and act in the best interests 
of the person for whom they have been appointed. They must also 
have regard to guidance in this chapter and other parts of the Code of 
Practice. Further guidance for receivers is available from the OPG.
Cases involving young people aged 16 or 17
8.6 
Either a court dealing with family proceedings or the Court of 
Protection can hear cases involving people aged 16 or 17 who lack 
capacity. In some cases, the Court of Protection can hear cases 
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Mental Capacity Act Code of Practice
involving people younger than 16 (for example, when somebody needs 
to be appointed to make longer-term decisions about their fi nancial 
affairs). Under section 21 of the Mental Capacity Act, the Court of 
Protection can transfer cases concerning children to a court that has 
powers under the Children Act 1989. Such a court can also transfer 
cases to the Court of Protection, if necessary. Chapter 12 gives more 
detail on cases where this might apply.
Who should make the application?
8.7  
The person making the application will vary, depending on the 
circumstances. For example, a person wishing to challenge a fi nding 
that they lack capacity may apply to the court, supported by others 
where necessary. Where there is a disagreement among family 
members, for example, a family member may wish to apply to the court 
to settle the disagreement – bearing in mind the need, in most cases, 
to get permission beforehand (see paragraphs 8.11–8.12 below).
8.8  
For cases about serious or major decisions concerning medical 
treatment (see paragraphs 8.18–8.24 below), the NHS Trust or other 
organisation responsible for the patient’s care will usually make the 
application. If social care staff are concerned about a decision that 
affects the welfare of a person who lacks capacity, the relevant local 
authority should make the application.
8.9 
For decisions about the property and affairs of someone who lacks 
capacity to manage their own affairs, the applicant will usually be the 
person (for example, family carer) who needs specifi c authority from 
the court to deal with the individual’s money or property.
8.10  If the applicant is the person who is alleged to lack capacity, they will 
always be a party to the court proceedings. In all other cases, the 
court will decide whether the person who lacks, or is alleged to lack, 
capacity should be involved as a party to the case. Where the person 
is a party to the case, the court may appoint the Offi cial Solicitor to act 
for them.
Who must ask the court for permission to make an application?
8.11   As a general rule, potential applicants must get the permission of the 
Court of Protection before making an application (section 50). People 
who the Act says do not need to ask for permission include:
•  a person who lacks, or is alleged to lack, capacity in relation to a 
specifi c decision or action (or anyone with parental responsibility, if 
the person is under 18 years)
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Mental Capacity Act Code of Practice
•  the donor of the LPA an application relates to – or their attorney
•  a deputy who has been appointed by the court to act for the person 
Chapter 8
concerned, and
•  a person named in an existing court order relating to the application.
What is the role 
of the Court of 
 
 The Court of Protection Rules also set out specific types of cases 
Protection and 
where permission is not required.
court-appointed 
deputies?
8.12   When deciding whether to give permission for an application, the court 
must consider:
•  the applicant’s connection to the person the application is about
•  the reasons for the application
•  whether a proposed order or direction of the court will benefi t the 
person the application is about, and
•  whether it is possible to get that benefi t another way.
Scenario: Considering whether to give permission for an application
Sunita, a young Asian woman, has always been close to her older 
brother, who has severe learning disabilities and lives in a care home. 
Two years ago, Sunita married a non-Asian man, and her family cut off 
contact with her. She still wants to visit her brother and to be consulted 
about his care and what is in his best interests. But the family is not 
letting her. The Court of Protection gives Sunita permission to apply to 
the court for an order allowing her contact with her brother.
What powers does the Court of Protection have?
8.13   The Court of Protection may:
•  make declarations, decisions and orders on fi nancial and welfare 
matters affecting people who lack, or are alleged to lack, capacity 
(the lack of capacity must relate to the particular issue being 
presented to the court)
•  appoint deputies to make decisions for people who lack capacity to 
make those decisions
•  remove deputies or attorneys who act inappropriately.
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 The Court can also hear cases about LPAs and EPAs. The court’s 
powers concerning EPAs are set out in Schedule 4 of the Act.
8.14   The court must always follow the statutory principles set out in section 
1 of the Act (see chapter 2) and make the decision in the best interests 
of the person concerned (see chapter 5).
What declarations can the court make?
8.15   Section 15 of the Act provides the court with powers to make a 
declaration (a ruling) on specifi c issues. For example, it can make a 
declaration as to whether a person has capacity to make a particular 
decision or give consent for or take a particular action. The court will 
require evidence of any assessment of the person’s capacity and may 
wish to see relevant written evidence (for example, a diary, letters or 
other papers). If the court decides the person has capacity to make 
that decision, they will not take the case further. The person can now 
make the decision for themselves.
8.16   Applications concerning a person’s capacity are likely to be rare 
– people can usually settle doubts and disagreements informally (see 
chapters 4 and 15). But an application may be relevant if:
•  a person wants to challenge a decision that they lack capacity
•  professionals disagree about a person’s capacity to make a specifi c 
(usually serious) decision
•  there is a dispute over whether the person has capacity (for 
example, between family members).
8.17  The court can also make a declaration as to whether a specifi c 
act relating to a person’s care or treatment is lawful (either where 
somebody has carried out the action or is proposing to). Under section 
15, this can include an omission or failure to provide care or treatment 
that the person needs.
 
 This power to decide on the lawfulness of an act is particularly 
relevant for major medical treatment cases where there is doubt or 
disagreement over whether the treatment would be in the person’s 
best interests. Healthcare staff can still give life-sustaining treatment, 
or treatment which stops a person’s condition getting seriously worse, 
while the court is coming to a decision.
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Mental Capacity Act Code of Practice
Serious healthcare and treatment decisions
8.18   Prior to the Act coming into force, the courts decided that some 
Chapter 8
decisions relating to the provision of medical treatment were so serious 
that in each case, an application should be made to the court for a 
What is the role 
declaration that the proposed action was lawful before that action was 
of the Court of 
taken. Cases involving any of the following decisions should therefore 
Protection and 
be brought before a court:
court-appointed 
deputies?
•  decisions about the proposed withholding or withdrawal of 
artifi cial nutrition and hydration (ANH) from patients in a permanent 
vegetative state (PVS)
•  cases involving organ or bone marrow donation by a person who 
lacks capacity to consent
•  cases involving the proposed non-therapeutic sterilisation of a 
person who lacks capacity to consent to this (e.g. for contraceptive 
purposes) and
•  all other cases where there is a doubt or dispute about whether a 
particular treatment will be in a person’s best interests.
8.19  The case law requirement to seek a declaration in cases involving the 
withholding or withdrawing of artifi cial nutrition and hydration to people 
in a permanent vegetative state is unaffected by the Act30 and as a 
matter of practice, these cases should be put to the Court of Protection 
for approval.
8.20   Cases involving organ or bone marrow donation by a person who lacks 
capacity to consent should also be referred to the Court of Protection. 
Such cases involve medical procedures being performed on a person 
who lacks capacity to consent but which would benefi t a third party 
(though would not necessarily directly or physically benefi t the person 
who lacks capacity). However, sometimes such procedures may be 
in the person’s overall best interests (see chapter 5). For example, the 
person might receive emotional, social and psychological benefi ts as a 
result of the help they have given, and in some cases the person may 
experience only minimal physical discomfort.
8.21   A prime example of this is the case of Re Y 31 where it was found to be 
in Y’s best interests for her to donate bone marrow to her sister. The 
court decided that it was in Y’s best interests to continue to receive 
strong emotional support from her mother, which might be diminished 
if her sister’s health were to deteriorate further, or she were to die. 
30  Airedale NHS Trust v Bland [1993] AC 789
31  Re Y (Mental incapacity: Bone marrow transplant) [1996] 2 FLR 787
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Further details on this area are available in Department of Health or 
Welsh Assembly guidance.32
8.22   Non-therapeutic sterilisation is the sterilisation for contraceptive 
purposes of a person who cannot consent. Such cases will require 
a careful assessment of whether such sterilisation would be in the 
best interests of the person who lacks capacity and such cases 
should continue to be referred to the court.33 The court has also given 
guidance on when certain termination of pregnancy cases should be 
brought before the court.34
8.23   Other cases likely to be referred to the court include those involving 
ethical dilemmas in untested areas (such as innovative treatments 
for variant CJD), or where there are otherwise irresolvable confl icts 
between healthcare staff, or between staff and family members.
8.24   There are also a few types of cases that should generally be dealt with 
by the court, since other dispute resolution methods are unlikely to be 
appropriate (see chapter 15). This includes, for example, cases where it 
is unclear whether proposed serious and/or invasive medical treatment 
is likely to be in the best interests of the person who lacks capacity 
to consent.
What powers does the court have to make decisions and appoint 
deputies?

8.25   In cases of serious dispute, where there is no other way of fi nding a 
solution or when the authority of the court is needed in order to make a 
particular decision or take a particular action, the court can be asked to 
make a decision to settle the matter using its powers under section 16.
 
 However, if there is a need for ongoing decision-making powers and 
there is no relevant EPA or LPA, the court may appoint a deputy to 
make future decisions. It will also state what decisions the deputy has 
the authority to make on the person’s behalf.
32  Reference Guide to Consent for Examination or Treatment, Department of 
Health, March 2001 www.dh.gov.uk/PublicationsAndStatistics/Publications/
PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_
ID=4006757&chk=snmdw8
33 See e.g. Re A (medical treatment: male sterilisation) (1999) 53 BMLR 66 where a mother 
applied for a declaration that a vasectomy was in the best interests of A, her son, (who 
had Down’s syndrome and was borderline between signifi cant and severe impairment of 
intelligence), in the absence of his consent. After balancing the burdens and benefi ts of the 
proposed vasectomy to A, the Court of Appeal held that the vasectomy would not be in A’s 
best interests.
34  D v An NHS Trust (Medical Treatment: Consent: Termination) [2004] 1 FLR 1110
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Mental Capacity Act Code of Practice
8.26  In deciding what type of order to make, the court must apply the Act’s 
principles and the best interests checklist. In addition, it must follow 
Chapter 8
two further principles, intended to make any intervention as limited as 
possible:
What is the role 
•  Where possible, the court should make the decision itself in 
of the Court of 
Protection and 
preference to appointing a deputy.
court-appointed 
•  If a deputy needs to be appointed, their appointment should be as 
deputies?
limited in scope and for as short a time as possible.
What decisions can the court make?
8.27   In some cases, the court must make a decision, because someone 
needs specifi c authority to act and there is no other route for getting it. 
These include cases where:
•  there is no EPA or property and affairs LPA in place and someone 
needs to make a fi nancial decision for a person who lacks capacity 
to make that decision (for example, the decision to terminate a 
tenancy agreement), or
•  it is necessary to make a will, or to amend an existing will, on behalf 
of a person who lacks capacity to do so.
8.28   Examples of other types of cases where a court decision might be 
appropriate include cases where:
•  there is genuine doubt or disagreement about the existence, validity 
or applicability of an advance decision to refuse treatment (see 
chapter 9)
•  there is a major disagreement regarding a serious decision (for 
example, about where a person who lacks capacity to decide for 
themselves should live)
•  a family carer or a solicitor asks for personal information about 
someone who lacks capacity to consent to that information being 
revealed (for example, where there have been allegations of abuse of 
a person living in a care home)
•  someone suspects that a person who lacks capacity to make 
decisions to protect themselves is at risk of harm or abuse from a 
named individual (the court could stop that individual contacting the 
person who lacks capacity).
8.29   Anyone carrying out actions under a decision or order of the court must 
still also follow the Act’s principles.
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Mental Capacity Act Code of Practice
Scenario: Making a decision to settle disagreements
Mrs Worrell has Alzheimer’s disease. Her son and daughter argue over 
which care home their mother should move to. Although Mrs Worrell 
lacks the capacity to make this decision herself, she has enough money 
to pay the fees of a care home.
Her solicitor acts as attorney in relation to her fi nancial affairs under a 
registered EPA. But he has no power to get involved in this family dispute 
– nor does he want to get involved.
The Court of Protection makes a decision in Mrs Worrell’s best interests, 
and decides which care home can best meet her needs. Once this 
matter is resolved, there is no need to appoint a deputy.
What powers does the court have in relation to LPAs?
8.30   The Court of Protection can determine the validity of an LPA or EPA 
and can give directions as to how an attorney should use their powers 
under an LPA (see chapter 7). In particular, the court can cancel an 
LPA and end the attorney’s appointment. The court might do this if 
the attorney was not carrying out their duties properly or acting in the 
best interests of the donor. The court must then decide whether it is 
necessary to appoint a deputy to take over the attorney’s role.
What are the rules for appointing deputies?
8.31   Sometimes it is not practical or appropriate for the court to make a 
single declaration or decision. In such cases, if the court thinks that 
somebody needs to make future or ongoing decisions for someone 
whose condition makes it likely they will lack capacity to make some 
further decisions in the future, it can appoint a deputy to act for and 
make decisions for that person. A deputy’s authority should be as 
limited in scope and duration as possible (see paragraphs 8.35–8.39 
below).
How does the court appoint deputies?
8.32  It is for the court to decide who to appoint as a deputy. Different skills 
may be required depending on whether the deputy’s decisions will be 
about a person’s welfare (including healthcare), their fi nances or both. 
The court will decide whether the proposed deputy is reliable and 
trustworthy and has an appropriate level of skill and competence to 
carry out the necessary tasks.
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8.33   In the majority of cases, the deputy is likely to be a family member or 
someone who knows the person well. But in some cases the court 
Chapter 8
may decide to appoint a deputy who is independent of the family (for 
example, where the person’s affairs or care needs are particularly 
complicated). This could be, for example, the Director of Adult Services 
What is the role 
in the relevant local authority (but see paragraph 8.60 below) or a 
of the Court of 
Protection and 
professional deputy. The OPG has a panel of professional deputies 
court-appointed 
(mainly solicitors who specialise in this area of law) who may be 
deputies?
appointed to deal with property and affairs if the court decides that 
would be in the person’s best interests.
When might a deputy need to be appointed?
8.34   Whether a person who lacks capacity to make specifi c decisions needs 
a deputy will depend on:
•  the individual circumstances of the person concerned
•  whether future or ongoing decisions are likely to be necessary, and
•  whether the appointment is for decisions about property and affairs 
or personal welfare.
Property and affairs
8.35   The court will appoint a deputy to manage a person’s property and 
affairs (including fi nancial matters) in similar circumstances to those 
in which they would have appointed a receiver in the past. If a person 
who lacks capacity to make decisions about property and affairs has 
not made an EPA or LPA, applications to the court are necessary:
•  for dealing with cash assets over a specifi ed amount that remain 
after any debts have been paid
•  for selling a person’s property, or
•  where the person has a level of income or capital that the court 
thinks a deputy needs to manage.
8.36   If the only income of a person who lacks capacity is social security 
benefi ts and they have no property or savings, there will usually 
be no need for a deputy to be appointed. This is because the 
person’s benefi ts can be managed by an appointee, appointed by 
the Department for Work and Pensions to receive and deal with the 
benefi ts of a person who lacks capacity to do this for themselves. 
Although appointees are not covered by the Act, they will be expected 
to act in the person’s best interests and must do so if they are involved 
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Mental Capacity Act Code of Practice
in caring for the person. If the court does appoint a property and affairs 
deputy for someone who has an appointee, it is likely that the deputy 
would take over the appointee’s role.
8.37   Anybody considered for appointment as a property and affairs deputy 
will need to sign a declaration giving details of their circumstances and 
ability to manage fi nancial affairs. The declaration will include details 
of the tasks and duties the deputy must carry out. The deputy must 
assure the court that they have the skills, knowledge and commitment 
to carry them out.
Personal welfare (including healthcare)
8.38  Deputies for personal welfare decisions will only be required in the 
most diffi cult cases where:
•  important and necessary actions cannot be carried out without the 
court’s authority, or
•  there is no other way of settling the matter in the best interests of 
the person who lacks capacity to make particular welfare decisions.
8.39   Examples include when:
•  someone needs to make a series of linked welfare decisions over 
time and it would not be benefi cial or appropriate to require all of 
those decisions to be made by the court. For example, someone 
(such as a family carer) who is close to a person with profound 
and multiple learning disabilities might apply to be appointed as a 
deputy with authority to make such decisions
•  the most appropriate way to act in the person’s best interests is to 
have a deputy, who will consult relevant people but have the fi nal 
authority to make decisions
•  there is a history of serious family disputes that could have a 
detrimental effect on the person’s future care unless a deputy is 
appointed to make necessary decisions
•  the person who lacks capacity is felt to be at risk of serious harm 
if left in the care of family members. In these rare cases, welfare 
decisions may need to be made by someone independent of the 
family, such as a local authority offi cer. There may even be a need 
for an additional court order prohibiting those family members from 
having contact with the person.
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Who can be a deputy?
Chapter 8
8.40   Section 19(1) states that deputies must be at least 18 years of age. 
Deputies with responsibility for property and affairs can be either an 
individual or a trust corporation (often parts of banks or other fi nancial 
What is the role 
institutions). No-one can be appointed as a deputy without their consent.
of the Court of 
Protection and 
court-appointed 
8.41   Paid care workers (for example, care home managers) should not agree 
deputies?
to act as a deputy because of the possible confl ict of interest – unless 
there are exceptional circumstances (for example, if the care worker 
is the only close relative of the person who lacks capacity). But the 
court can appoint someone who is an offi ce-holder or in a specifi ed 
position (for example, the Director of Adult Services of the relevant 
local authority). In this situation, the court will need to be satisfi ed that 
there is no confl ict of interest before making such an appointment (see 
paragraphs 8.58–8.60).
8.42   The court can appoint two or more deputies and state whether they 
should act ‘jointly’, ‘jointly and severally’ or ‘jointly in respect of some 
matters and jointly and severally in respect of others’ (section 19 (4)(c)).
•  Joint deputies must always act together. They must all agree 
decisions or actions, and all sign any relevant documents.
•  Joint and several deputies can act together, but they may also act 
independently if they wish. Any action taken by any deputy alone is 
as valid as if that person were the only deputy.
8.43   Deputies may be appointed jointly for some issues and jointly and 
severally for others. For example, two deputies could be appointed 
jointly and severally for most decisions, but the court might rule that 
they act jointly when selling property.
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Mental Capacity Act Code of Practice
Scenario: Acting jointly and severally
Toby had a road accident and suffered brain damage and other 
disabilities. He gets financial compensation but lacks capacity to 
manage this amount of money or make decisions about his future care. 
His divorced parents are arguing about where their son should live and 
how his compensation money should be used. Toby has always been 
close to his sister, who is keen to be involved but is anxious about 
dealing with such a large amount of money.
The court decides where Toby will live. It also appoints his sister and 
a solicitor as joint and several deputies to manage his property and 
affairs. His sister can deal with any day-to-day decisions that Toby lacks 
capacity to make, and the solicitor can deal with more complicated 
matters.
What happens if a deputy can no longer carry out their duties?
8.44   When appointing a deputy, the court can also appoint someone to be 
a successor deputy (someone who can take over the deputy’s duties 
in certain situations). The court will state the circumstances under 
which this could occur. In some cases it will also state a period of time 
in which the successor deputy can act. Appointment of a successor 
deputy might be useful if the person appointed as deputy is already 
elderly and wants to be sure that somebody will take over their duties 
in the future, if necessary.
Scenario: Appointing a successor deputy
Neil, a man with Down’s syndrome, inherits a lot of money and property. 
His parents were already retired when the court appointed them as 
joint deputies to manage Neil’s property and affairs. They are worried 
about what will happen to Neil when they cannot carry out their duties 
as deputies any more. The court agrees to appoint other relatives as 
successor deputies. They will then be able to take over as deputies after 
the parents’ death or if his parents are no longer able to carry out the 
deputy’s role.
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Mental Capacity Act Code of Practice
Can the court protect people lacking capacity from 
financial loss?

Chapter 8
8.45  Under section 19(9)(a) of the Act the court can ask a property and 
affairs deputy to provide some form of security (for example, a 
What is the role 
of the Court of 
guarantee bond) to the Public Guardian to cover any loss as a result of 
Protection and 
the deputy’s behaviour in carrying out their role. The court can also ask 
court-appointed 
a deputy to provide reports and accounts to the Public Guardian, as it 
deputies?
sees fi t.
Are there any restrictions on a deputy’s powers?
8.46   Section 20 sets out some specifi c restrictions on a deputy’s powers. In 
particular, a deputy has no authority to make decisions or take action:
•  if they do something that is intended to restrain the person who 
lacks capacity – apart from under certain circumstances (guidance 
on the circumstances when restraint might be permitted is given in 
chapter 6)35
•  if they think that the person concerned has capacity to make the 
particular decision for themselves
•  if their decision goes against a decision made by an attorney acting 
under a Lasting Power of Attorney granted by the person before 
they lost capacity, or
•  to refuse the provision or continuation of life-sustaining treatment for 
a person who lacks capacity to consent – such decisions must be 
taken by the court.
 
 If a deputy thinks their powers are not enough for them to carry out 
their duties effectively, they can apply to the court to change their 
powers. See paragraph 8.54 below.
What responsibilities do deputies have?
8.47   Once a deputy has been appointed by the court, the order of 
appointment will set out their specifi c powers and the scope of their 
authority. On taking up the appointment, the deputy will assume a 
number of duties and responsibilities and will be required to act in 
accordance with certain standards. Failure to comply with the duties 
35  It is worth noting that there is a drafting error in section 20 of the Act. The word ‘or’ in 
section 20(11)(a) should have been ‘and’ in order to be consistent with sections 6(3)(a) and 
11(4)(a). The Government will make the necessary amendment to correct this error at the 
earliest available legislative opportunity.
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Mental Capacity Act Code of Practice
set out below could result in the Court of Protection revoking the order 
appointing the deputy and, in some circumstances, the deputy could be 
personally liable to claims for negligence or criminal charges of fraud.
8.48   Deputies should always inform any third party they are dealing with that 
the court has appointed them as deputy. The court will give the deputy 
offi cial documents to prove their appointment and the extent of their 
authority.
8.49   A deputy must act whenever a decision or action is needed and it 
falls within their duties as set out in the court order appointing them. 
A deputy who fails to act at all in such situations could be in breach 
of duty.
What duties does the Act impose?
8.50   Deputies must:
•  follow the Act’s statutory principles (see chapter 2)
•  make decisions or act in the best interests of the person who lacks 
capacity
•  have regard to the guidance in this Code of Practice
•  only make decisions the Court has given them authority to make.
Principles and best interests
8.51   Deputies must act in accordance with the Act’s statutory principles 
(section 1) and in particular the best interests of the person who 
lacks capacity (the steps for working out best interests are set out in 
section 4). In particular, deputies must consider whether the person 
has capacity to make the decision for themselves. If not, they should 
consider whether the person is likely to regain capacity to make the 
decision in the future. If so, it may be possible to delay the decision 
until the person can make it.
The Code of Practice
8.52   As well as this chapter, deputies should pay special attention to the 
following guidance set out in the Code:
•  chapter 2, which sets out how the Act’s principles should be applied
•  chapter 3, which describes the steps which can be taken to try to 
help the person make decisions for themselves
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Mental Capacity Act Code of Practice
•  chapter 4, which describes the Act’s defi nition of lack of capacity 
and gives guidance on assessing capacity, and
Chapter 8
•  chapter 5, which gives guidance on working out someone’s best 
interests.
What is the role 
8.53   In some situations, deputies might also fi nd it useful to refer to 
of the Court of 
guidance in:
Protection and 
court-appointed 
deputies?
•  chapter 6, which explains when deputies who have caring 
responsibilities may have protection from liability and gives 
guidance on the few circumstances when the Act allows restraint in 
connection with care and treatment, and
•  chapter 15, which describes ways to settle disagreements.
Only making decisions the court authorises a deputy to make
8.54   A deputy has a duty to act only within the scope of the actual powers 
given by the court, which are set out in the order of appointment. It is 
possible that a deputy will think their powers are not enough for them 
to carry out their duties effectively. In this situation, they must apply to 
the court either to:
•  ask the court to make the decision in question, or
•  ask the court to change the deputy’s powers.
What are a deputy’s other duties?
8.55   Section 19(6) states that a deputy is to be treated as ‘the agent’ of the 
person who lacks capacity when they act on their behalf. Being an agent 
means that the deputy has legal duties (under the law of agency) to the 
person they are representing. It also means that when they carry out 
tasks within their powers, they are not personally liable to third parties.
8.56   Deputies must carry out their duties carefully and responsibly. They 
have a duty to:
•  act with due care and skill (duty of care)
•  not take advantage of their situation (fi duciary duty)
•  indemnify the person against liability to third parties caused by the 
deputy’s negligence
•  not delegate duties unless authorised to do so
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Mental Capacity Act Code of Practice
•  act in good faith
•  respect the person’s confi dentiality, and
•  comply with the directions of the Court of Protection.
 
Property and affairs deputies also have a duty to:
•  keep accounts, and
•  keep the person’s money and property separate from own fi nances.
Duty of care
8.57   ‘Duty of care’ means applying a certain standard of care and skill 
– depending on whether the deputy is paid for their services or holds 
relevant professional qualifi cations.
•  Deputies who are not being paid must use the same care, skill and 
diligence they would use when making decisions for themselves or 
managing their own affairs. If they do not, they could be held liable 
for acting negligently. A deputy who claims to have particular skills 
or qualifi cations must show greater skill in those particular areas 
than a person who does not make such claims.
•  If deputies are being paid for their services, they are expected to 
demonstrate a higher degree of care or skill when carrying out their 
duties. 
•  Deputies whose duties form part of their professional work (for 
example, solicitors or accountants) must display normal professional 
competence and follow their profession’s rules and standards.
Fiduciary duty
8.58   A fi duciary duty means deputies must not take advantage of their 
position. Nor should they put themselves in a position where their 
personal interests confl ict with their duties. For example, deputies 
should not buy property that they are selling for the person they have 
been appointed to represent. They should also not accept a third party 
commission in any transactions. Deputies must not allow anything 
else to infl uence their duties. They cannot use their position for any 
personal benefi t, whether or not it is at the person’s expense.
8.59   In many cases, the deputy will be a family member. In rare situations, 
this could lead to potential confl icts of interests. When making 
decisions, deputies should follow the Act’s statutory principles and 
apply the best interests checklist and not allow their own personal 
interests to infl uence the decision.
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Mental Capacity Act Code of Practice
8.60   Sometimes the court will consider appointing the Director of Adult 
Services in England or Director of Social Services in Wales of the 
Chapter 8
relevant local authority as a deputy. The court will need to be satisfi ed 
that the authority has arrangements to avoid possible confl icts of 
interest. For example where the person for whom a fi nancial deputy 
What is the role 
is required receives community care services from the local authority, 
of the Court of 
Protection and 
the court will wish to be satisfi ed that decisions about the person’s 
court-appointed 
fi nances will be made in the best interests of that person, regardless of 
deputies?
any implications for the services provided.
Duty not to delegate
8.61   A deputy may seek professional or expert advice (for example, 
investment advice from a fi nancial adviser or a second medical 
opinion from a doctor). But they cannot give their decision-making 
responsibilities to someone else. In certain circumstances, the court 
will authorise the delegation of specifi c tasks (for example, appointing 
a discretionary investment manager for the conduct of investment 
business).
8.62   In certain circumstances, deputies may have limited powers to 
delegate (for example, through necessity or unforeseen circumstances, 
or for specifi c tasks which the court would not have expected the 
deputy to attend to personally). But deputies cannot usually delegate 
any decisions that rely on their discretion. If the deputy is the Director 
of Adult Services in England or Director of Social Services in Wales, 
or a solicitor, they can delegate specifi c tasks to other staff. But the 
deputy is still responsible for any actions or decisions taken, and can 
therefore be held accountable for any errors that are made.
Duty of good faith
8.63   Acting in good faith means acting with honesty and integrity. For 
example, a deputy must try to make sure that their decisions do not go 
against a decision the person made while they still had capacity (unless 
it would be in the person’s best interests to do so).
Duty of confidentiality 
8.64   Deputies have a duty to keep the person’s affairs confi dential, unless:
•  before they lost capacity to do so, the person agreed that 
information could be revealed where necessary
•  there is some other good reason to release information (for example, 
it is in the public interest or in the best interests of the person 
who lacks capacity, or where there is a risk of harm to the person 
concerned or to other people).
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Mental Capacity Act Code of Practice
 
 In the latter circumstances, it is advisable for the deputy to contact 
the OPG for guidance or get legal advice. See chapter 16 for more 
information about revealing personal information.
Duty to comply with the directions of the Court of Protection
8.65  The Court of Protection may give specifi c directions to deputies about 
how they should use their powers. It can also order deputies to provide 
reports (for example, fi nancial accounts or reports on the welfare of 
the person who lacks capacity) to the Public Guardian at any time or 
at such intervals as the court directs. Deputies must comply with any 
direction of the court or request from the Public Guardian.
Duty to keep accounts
8.66   A deputy appointed to manage property and affairs is expected to 
keep, and periodically submit to the Public Guardian, correct accounts 
of all their dealings and transactions on the person’s behalf.
Duty to keep the person’s money and property separate
8.67   Property and affairs deputies should usually keep the person’s money 
and property separate from their own or anyone else’s. This is to avoid 
any possibility of mistakes or confusion in handling the person’s affairs. 
Sometimes there may be good reason not to do so (for example, a 
husband might be his wife’s deputy and they might have had a joint 
account for many years).
Changes of contact details
8.68   A deputy should inform the OPG of any changes of contact details or 
circumstances (for the deputy or the person they are acting for). This 
will help make sure that the OPG has up-to-date records. It will also 
allow the court to discharge people who are no longer eligible to act 
as deputies.
Who is responsible for supervising deputies?
8.69   Deputies are accountable to the Court of Protection. The court 
can cancel a deputy’s appointment at any time if it decides the 
appointment is no longer in the best interests of the person who 
lacks capacity.
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8.70  The OPG is responsible for supervising and supporting deputies. But 
it must also protect people lacking capacity from possible abuse or 
Chapter 8
exploitation. Anybody who suspects that a deputy is abusing their 
position should contact the OPG immediately. The OPG may instruct 
a Court of Protection Visitor to visit a deputy to investigate any 
What is the role 
matter of concern. It can also apply to the court to cancel a deputy’s 
of the Court of 
Protection and 
appointment.
court-appointed 
deputies?
8.71   The OPG will consider carefully any concerns or complaints against 
deputies. But if somebody suspects physical or sexual abuse or 
serious fraud, they should contact the police and/or social services 
immediately, as well as informing the OPG. Chapter 14 gives more 
information about the role of the OPG. It also discusses the protection 
of vulnerable people from abuse, ill treatment or wilful neglect and the 
responsibilities of various relevant agencies.
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9 What does the Act say about 
advance decisions to refuse 
treatment?
This chapter explains what to do when somebody has made an advance 
decision to refuse treatment. It sets out:
•  what the Act means by an ‘advance decision’
•  guidance on making, updating and cancelling advance decisions
•  how to check whether an advance decision exists
•  how to check that an advance decision is valid and that it applies to 
current circumstances
•  the responsibilities of healthcare professionals when an advance 
decision exists
•  how to handle disagreements about advance decisions.
In this chapter, as throughout the Code, a person’s capacity (or lack 
of capacity) refers specifically to their capacity to make a particular 
decision at the time it needs to be made.
Quick summary
•  An advance decision enables someone aged 18 and over, while still 
capable, to refuse specifi ed medical treatment for a time in the future when 
they may lack the capacity to consent to or refuse that treatment.
•  An advance decision to refuse treatment must be valid and applicable to 
current circumstances. If it is, it has the same effect as a decision that is 
made by a person with capacity: healthcare professionals must follow 
the decision.
•  Healthcare professionals will be protected from liability if they:
   –  
 stop or withhold treatment because they reasonably believe that an 
advance decision exists, and that it is valid and applicable
   –  
treat a person because, having taken all practical and appropriate 
steps to fi nd out if the person has made an advance decision to 
refuse treatment, they do not know or are not satisfi ed that a valid and 
applicable advance decision exists.
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•  People can only make an advance decision under the Act if they are 18 
or over and have the capacity to make the decision. They must say what 
Chapter 9
treatment they want to refuse, and they can cancel their decision – or part 
of it – at any time.
What does 
•  If the advance decision refuses life-sustaining treatment, it must:
the Act say 
about advance 
   –  
be in writing (it can be written by a someone else or recorded in 
decisions to 
healthcare notes)
refuse treatment?
   –  
 be signed and witnessed, and
   –  
 state clearly that the decision applies even if life is at risk.
•  To establish whether an advance decision is valid and applicable, 
healthcare professionals must try to fi nd out if the person:
   –  
 has done anything that clearly goes against their advance decision
   –  
has withdrawn their decision
   –  
 has subsequently conferred the power to make that decision on an 
attorney, or
   –  
 would have changed their decision if they had known more about the 
current circumstances.
•  Sometimes healthcare professionals will conclude that an advance decision 
does not exist, is not valid and/or applicable – but that it is an expression 
of the person’s wishes. The healthcare professional must then consider 
what is set out in the advance decision as an expression of previous wishes 
when working out the person’s best interests (see chapter 5). 
•  Some healthcare professionals may disagree in principle with patients’ 
decisions to refuse life-sustaining treatment. They do not have to act 
against their beliefs. But they must not simply abandon patients or act in a 
way that that affects their care.
•  Advance decisions to refuse treatment for mental disorder may not apply 
if the person who made the advance decision is or is liable to be detained 
under the Mental Health Act 1983.
How can someone make an advance decision to refuse 
treatment?

What is an advance decision to refuse treatment?
9.1  
It is a general principle of law and medical practice that people have 
a right to consent to or refuse treatment. The courts have recognised 
that adults have the right to say in advance that they want to refuse 
treatment if they lose capacity in the future – even if this results in their 
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death. A valid and applicable advance decision to refuse treatment 
has the same force as a contemporaneous decision. This has been a 
fundamental principle of the common law for many years and it is now 
set out in the Act. Sections 24–26 of the Act set out the when a person 
can make an advance decision to refuse treatment. This applies if:
•  the person is 18 or older, and
•  they have the capacity to make an advance decision about treatment.
 
Information on advance decisions to refuse treatment made by young 
people (under the age of 18) will be available at www.dh.gov.uk/consent
9.2  
Healthcare professionals must follow an advance decision if it is valid 
and applies to the particular circumstances. If they do not, they could 
face criminal prosecution (they could be charged for committing a 
crime) or civil liability (somebody could sue them).
9.3  
Advance decisions can have serious consequences for the people 
who make them. They can also have an important impact on family 
and friends, and professionals involved in their care. Before healthcare 
professionals can apply an advance decision, there must be proof that 
the decision:
• exists
•  is valid, and
•  is applicable in the current circumstances.
 
 These tests are legal requirements under section 25(1). Paragraphs 
9.38–9.44 explain the standard of proof the Act requires.
Who can make an advance decision to refuse treatment?
9.4  
It is up to individuals to decide whether they want to refuse treatment 
in advance. They are entitled to do so if they want, but there is no 
obligation to do so. Some people choose to make advance decisions 
while they are still healthy, even if there is no prospect of illness. This 
might be because they want to keep some control over what might 
happen to them in the future. Others may think of an advance decision 
as part of their preparations for growing older (similar to making a will). 
Or they might make an advance decision after they have been told they 
have a specifi c disease or condition.
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 Many people prefer not to make an advance decision, and instead 
leave healthcare professionals to make decisions in their best interests 
Chapter 9
at the time a decision needs to be made. Another option is to make 
a Lasting Power of Attorney. This allows a trusted family member 
or friend to make personal welfare decisions, such as those around 
What does 
treatment, on someone’s behalf, and in their best interests if they ever 
the Act say 
lose capacity to make those decisions themselves (see paragraph 9.33 
about advance 
decisions to 
below and chapter 7).
refuse treatment?
9.5  
People can only make advance decisions to refuse treatment. Nobody 
has the legal right to demand specifi c treatment, either at the time or 
in advance. So no-one can insist (either at the time or in advance) on 
being given treatments that healthcare professionals consider to be 
clinically unnecessary, futile or inappropriate. But people can make a 
request or state their wishes and preferences in advance. Healthcare 
professionals should then consider the request when deciding what is 
in a patient’s best interests (see chapter 5) if the patient lacks capacity.
9.6  
Nobody can ask for and receive procedures that are against the law 
(for example, help with committing suicide). As section 62 sets out, the 
Act does not change any of the laws relating to murder, manslaughter 
or helping someone to commit suicide.
Capacity to make an advance decision
9.7  
For most people, there will be no doubt about their capacity to make 
an advance decision. Even those who lack capacity to make some 
decisions may have the capacity to make an advance decision. In 
some cases it may be helpful to get evidence of a person’s capacity to 
make the advance decision (for example, if there is a possibility that the 
advance decision may be challenged in the future). It is also important 
to remember that capacity can change over time, and a person who 
lacks capacity to make a decision now might be able to make it in 
the future.
 
Chapter 3 explains how to assess a person’s capacity to make 
a decision.
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Scenario: Respecting capacity to make an advance decision
Mrs Long’s family has a history of polycystic ovary syndrome. She has 
made a written advance decision refusing any treatment or procedures 
that might affect her fertility. The document states that her ovaries and 
uterus must not be removed. She is having surgery to treat a blocked 
fallopian tube and, during the consent process, she told her doctor 
about her advance decision.
During surgery the doctor discovers a solid mass that he thinks might 
be cancerous. In his clinical judgement, he thinks it would be in Mrs 
Long’s best interests for him to remove the ovary. But he knows that 
Mrs Long had capacity when she made her valid and applicable 
advance decision, so he must respect her rights and follow her decision. 
After surgery, he can discuss the matter with Mrs Long and advise her 
about treatment options.
9.8  
In line with principle 1 of the Act, that ‘a person must be assumed 
to have capacity unless it is established that he lacks capacity’, 
healthcare professionals should always start from the assumption that 
a person who has made an advance decision had capacity to make it, 
unless they are aware of reasonable grounds to doubt the person had 
the capacity to make the advance decision at the time they made it. If 
a healthcare professional is not satisfi ed that the person had capacity 
at the time they made the advance decision, or if there are doubts 
about its existence, validity or applicability, they can treat the person 
without fear of liability. It is good practice to record their decisions 
and the reasons for them. The Act does not require them to record 
their assessment of the person’s capacity at the time the decision was 
made, but it would be good practice to do so.
9.9  
Healthcare professionals may have particular concerns about the 
capacity of someone with a history of suicide attempts or suicidal 
thoughts who has made an advance decision. It is important to 
remember that making an advance decision which, if followed, may 
result in death does not necessarily mean a person is or feels suicidal. 
Nor does it necessarily mean the person lacks capacity to make 
the advance decision. If the person is clearly suicidal, this may raise 
questions about their capacity to make an advance decision at the time 
they made it.
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What should people include in an advance decision?
Chapter 9
9.10   There are no particular formalities about the format of an advance 
decision. It can be written or verbal, unless it deals with life-sustaining 
treatment, in which case it must be written and specifi c rules apply (see 
What does 
paragraphs 9.24–9.28 below).
the Act say 
about advance 
decisions to 
9.11   An advance decision to refuse treatment:
refuse treatment?
•  must state precisely what treatment is to be refused – a statement 
giving a general desire not to be treated is not enough
•  may set out the circumstances when the refusal should apply – it is 
helpful to include as much detail as possible
•  will only apply at a time when the person lacks capacity to consent 
to or refuse the specifi c treatment.
 
Specific rules apply to life-sustaining treatment.
9.12  People can use medical language or everyday language in their 
advance decision. But they must make clear what their wishes are and 
what treatment they would like to refuse.
9.13   An advance decision refusing all treatment in any situation (for 
example, where a person explains that their decision is based on their 
religion or personal beliefs) may be valid and applicable.
9.14   It is recommended that people who are thinking about making an 
advance decision get advice from:
•  healthcare professionals (for example, their GP or the person most 
closely involved with current healthcare or treatment), or
•  an organisation that can provide advice on specifi c conditions 
or situations (they might have their own format for recording an 
advance decision).
 
 But it is up to the person whether they want to do this or not. 
Healthcare professionals should record details of any discussion on 
healthcare records.
9.15   Some people may also want to get legal advice. This will help them 
make sure that they express their decision clearly and accurately. It will 
also help to make sure that people understand their advance decision 
in the future.
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Mental Capacity Act Code of Practice
9.16   It is a good idea to try to include possible future circumstances in 
the advance decision. For example, a woman may want to state in 
the advance decision whether or not it should still apply if she later 
becomes pregnant. If the document does not anticipate a change 
in circumstance, healthcare professionals may decide that it is not 
applicable if those particular circumstances arise.
9.17   If an advance decision is recorded on a patient’s healthcare records, 
it is confi dential. Some patients will tell others about their advance 
decision (for example, they might tell healthcare professionals, friends 
or family). Others will not. People who do not ask for their advance 
decision to be recorded on their healthcare record will need to think 
about where it should be kept and how they are going to let people 
know about their decision.
Written advance decisions
9.18   A written document can be evidence of an advance decision. It is 
helpful to tell others that the document exists and where it is. A person 
may want to carry it with them in case of emergency, or carry a card, 
bracelet or other indication that they have made an advance decision 
and explaining where it is kept.
9.19   There is no set form for written advance decisions, because contents 
will vary depending on a person’s wishes and situation. But it is helpful 
to include the following information:
•  full details of the person making the advance decision, including 
date of birth, home address and any distinguishing features (in case 
healthcare professionals need to identify an unconscious person, for 
example)
•  the name and address of the person’s GP and whether they have a 
copy of the document
•  a statement that the document should be used if the person ever 
lacks capacity to make treatment decisions
•  a clear statement of the decision, the treatment to be refused and 
the circumstances in which the decision will apply
•  the date the document was written (or reviewed)
•  the person’s signature (or the signature of someone the person has 
asked to sign on their behalf and in their presence)
•  the signature of the person witnessing the signature, if there is one 
(or a statement directing somebody to sign on the person’s behalf).
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 See paragraphs 9.24–9.28 below if the advance decision deals with 
life-sustaining treatment.
Chapter 9
9.20   Witnessing the person’s signature is not essential, except in cases 
where the person is making an advance decision to refuse life-sustaining 
What does 
treatment. But if there is a witness, they are witnessing the signature 
the Act say 
and the fact that it confi rms the wishes set out in the advance decision. 
about advance 
decisions to 
It may be helpful to give a description of the relationship between 
refuse treatment?
the witness and person making the advance decision. The role of the 
witness is to witness the person’s signature, it is not to certify that the 
person has the capacity to make the advance decision – even if the 
witness is a healthcare professional or knows the person.
9.21   It is possible that a professional acting as a witness will also be the 
person who assesses the person’s capacity. If so, the professional 
should also make a record of the assessment, because acting as a 
witness does not prove that there has been an assessment.
Verbal advance decisions
9.22   There is no set format for verbal advance decisions. This is because 
they will vary depending on a person’s wishes and situation. Healthcare 
professionals will need to consider whether a verbal advance decision 
exists and whether it is valid and applicable (see paragraphs 9.38–
9.44). 
9.23   Where possible, healthcare professionals should record a verbal 
advance decision to refuse treatment in a person’s healthcare record. 
This will produce a written record that could prevent confusion about 
the decision in the future. The record should include:
•  a note that the decision should apply if the person lacks capacity to 
make treatment decisions in the future
•  a clear note of the decision, the treatment to be refused and the 
circumstances in which the decision will apply
•  details of someone who was present when the oral advance 
decision was recorded and the role in which they were present (for 
example, healthcare professional or family member), and
•  whether they heard the decision, took part in it or are just aware that 
it exists.
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What rules apply to advance decisions to refuse 
life-sustaining treatment?

9.24   The Act imposes particular legal requirements and safeguards on 
the making of advance decisions to refuse life-sustaining treatment. 
Advance decisions to refuse life-sustaining treatment must meet 
specifi c requirements:
•  They must be put in writing. If the person is unable to write, 
someone else should write it down for them. For example, a family 
member can write down the decision on their behalf, or a healthcare 
professional can record it in the person’s healthcare notes.
•  The person must sign the advance decision. If they are unable 
to sign, they can direct someone to sign on their behalf in their 
presence.
•  The person making the decision must sign in the presence of a 
witness to the signature. The witness must then sign the document 
in the presence of the person making the advance decision. If the 
person making the advance decision is unable to sign, the witness 
can witness them directing someone else to sign on their behalf. 
The witness must then sign to indicate that they have witnessed 
the nominated person signing the document in front of the person 
making the advance decision.
•  The advance decision must include a clear, specifi c written statement 
from the person making the advance decision that the advance 
decision is to apply to the specifi c treatment even if life is at risk.
•  If this statement is made at a different time or in a separate 
document to the advance decision, the person making the advance 
decision (or someone they have directed to sign) must sign it in the 
presence of a witness, who must also sign it.
9.25   Section 4(10) states that life-sustaining treatment is treatment which 
a healthcare professional who is providing care to the person regards 
as necessary to sustain life. This decision will not just depend on the 
type of treatment. It will also depend on the circumstances in which 
the healthcare professional is giving it. For example, in some situations 
antibiotics may be life-sustaining, but in others they can be used to 
treat conditions that do not threaten life.
9.26   Artifi cial nutrition and hydration (ANH) has been recognised as a form 
of medical treatment. ANH involves using tubes to provide nutrition and 
fl uids to someone who cannot take them by mouth. It bypasses the 
natural mechanisms that control hunger and thirst and requires clinical 
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Mental Capacity Act Code of Practice
monitoring. An advance decision can refuse ANH. Refusing ANH in an 
advance decision is likely to result in the person’s death, if the advance 
Chapter 9
decision is followed.
9.27   It is very important to discuss advance decisions to refuse life-sustaining 
What does 
treatment with a healthcare professional. But it is not compulsory. A 
the Act say 
healthcare professional will be able to explain:
about advance 
decisions to 
refuse treatment?
•  what types of treatment may be life-sustaining treatment, and in 
what circumstances
•  the implications and consequences of refusing such treatment (see 
also paragraph 9.14).
9.28   An advance decision cannot refuse actions that are needed to keep 
a person comfortable (sometimes called basic or essential care). 
Examples include warmth, shelter, actions to keep a person clean 
and the offer of food and water by mouth. Section 5 of the Act allows 
healthcare professionals to carry out these actions in the best interests 
of a person who lacks capacity to consent (see chapter 6). An advance 
decision can refuse artifi cial nutrition and hydration.
When should someone review or update an advance decision?
9.29   Anyone who has made an advance decision is advised to regularly 
review and update it as necessary. Decisions made a long time in 
advance are not automatically invalid or inapplicable, but they may 
raise doubts when deciding whether they are valid and applicable. 
A written decision that is regularly reviewed is more likely to be valid 
and applicable to current circumstances – particularly for progressive 
illnesses. This is because it is more likely to have taken on board 
changes that have occurred in a person’s life since they made 
their decision.
9.30   Views and circumstances may change over time. A new stage in a 
person’s illness, the development of new treatments or a major change 
in personal circumstances may be appropriate times to review and 
update an advance decision.
How can someone withdraw an advance decision?
9.31   Section 24(3) allows people to cancel or alter an advance decision at 
any time while they still have capacity to do so. There are no formal 
processes to follow. People can cancel their decision verbally or in 
writing, and they can destroy any original written document. Where 
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Mental Capacity Act Code of Practice
possible, the person who made the advance decision should tell 
anybody who knew about their advance decision that it has been 
cancelled. They can do this at any time. For example, they can do 
this on their way to the operating theatre or immediately before being 
given an anaesthetic. Healthcare professionals should record a verbal 
cancellation in healthcare records. This then forms a written record for 
future reference.
How can someone make changes to an advance decision?
9.32   People can makes changes to an advance decision verbally or in 
writing (section 24(3)) whether or not the advance decision was 
made in writing. It is good practice for healthcare professionals to 
record a change of decision in the person’s healthcare notes. But if 
the person wants to change an advance decision to include a refusal 
of life-sustaining treatment, they must follow the procedures described 
in paragraphs 9.24–9.28.
How do advance decisions relate to other rules about 
decision-making?

9.33   A valid and applicable advance decision to refuse treatment is as 
effective as a refusal made when a person has capacity. Therefore, 
an advance decision overrules:
•  the decision of any personal welfare Lasting Power of Attorney 
(LPA) made before the advance decision was made. So an attorney 
cannot give consent to treatment that has been refused in an 
advance decision made after the LPA was signed
•  the decision of any court-appointed deputy (so a deputy cannot give 
consent to treatment that has been refused in an advance decision 
which is valid and applicable)
•  the provisions of section 5 of the Act, which would otherwise allow 
healthcare professionals to give treatment that they believe is in a 
person’s best interests.
9.34   An LPA made after an advance decision will make the advance 
decision invalid, if the LPA gives the attorney the authority to make 
decisions about the same treatment (see paragraph 9.40).
9.35   The Court of Protection may make declarations as to the existence, 
validity and applicability of an advance decision, but it has no power to 
overrule a valid and applicable advance decision to refuse treatment.
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Mental Capacity Act Code of Practice
9.36   Where an advance decision is being followed, the best interests 
principle (see chapter 5) does not apply. This is because an advance 
Chapter 9
decision refl ects the decision of an adult with capacity who has made 
the decision for themselves. Healthcare professionals must follow a 
valid and applicable advance decision, even if they think it goes against 
What does 
a person’s best interests.
the Act say 
about advance 
decisions to 
Advance decisions regarding treatment for mental disorder
refuse treatment?
9.37   Advance decisions can refuse any kind of treatment, whether for a 
physical or mental disorder. But generally an advance decision to 
refuse treatment for mental disorder can be overruled if the person is 
detained in hospital under the Mental Health Act 1983, when treatment 
could be given compulsorily under Part 4 of that Act. Advance 
decisions to refuse treatment for other illnesses or conditions are not 
affected by the fact that the person is detained in hospital under the 
Mental Health Act. For further information see chapter 13.
How can somebody decide on the existence, validity and 
applicability of advance decisions?

Deciding whether an advance decision exists
9.38   It is the responsibility of the person making the advance decision to 
make sure their decision will be drawn to the attention of healthcare 
professionals when it is needed. Some people will want their decision 
to be recorded on their healthcare records. Those who do not will need 
to fi nd other ways of alerting people that they have made an advance 
decision and where somebody will fi nd any written document and 
supporting evidence. Some people carry a card or wear a bracelet. 
It is also useful to share this information with family and friends, who 
may alert healthcare professionals to the existence of an advance 
decision. But it is not compulsory. Providing their GP with a copy of the 
written document will allow them to record the decision in the person’s 
healthcare records.
9.39   It is important to be able to establish that the person making the 
advance decision was 18 or over when they made their decision, and 
that they had the capacity to make that decision when they made it, 
in line with the two-stage test for capacity set out in chapter 3. But 
as explained in paragraphs 9.7–9.9 above, healthcare professionals 
should always start from the assumption that the person had the 
capacity to make the advance decision.
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Mental Capacity Act Code of Practice
Deciding whether an advance decision is valid
9.40   An existing advance decision must still be valid at the time it needs to 
be put into effect. Healthcare professionals must consider the factors 
in section 25 of the Act before concluding that an advance decision 
is valid. Events that would make an advance decision invalid include 
those where:
•  the person withdrew the decision while they still had capacity to 
do so
•  after making the advance decision, the person made a Lasting 
Power of Attorney (LPA) giving an attorney authority to make 
treatment decisions that are the same as those covered by the 
advance decision (see also paragraph 9.33)
•  the person has done something that clearly goes against the 
advance decision which suggests that they have changed 
their mind.
Scenario: Assessing whether an advance decision is valid
A young man, Angus, sees a friend die after prolonged hospital 
treatment. Angus makes a signed and witnessed advance decision to 
refuse treatment to keep him alive if he is ever injured in this way. The 
advance decision includes a statement that this will apply even if his life 
is at risk.
A few years later, Angus is seriously injured in a road traffic accident. He 
is paralysed from the neck down and cannot breathe without the help 
of a machine. At first he stays conscious and gives permission to be 
treated. He takes part in a rehabilitation programme. Some months later 
he loses consciousness.
At this point somebody finds his written advance decision, even though 
Angus has not mentioned it during his treatment. His actions before his 
lack of capacity obviously go against the advance decision. Anyone 
assessing the advance decision needs to consider very carefully the 
doubt this has created about the validity of the advance decision, and 
whether the advance decision is valid and applicable as a result.
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Deciding whether an advance decision is applicable
9.41   To be applicable, an advance decision must apply to the situation in 
Chapter 9
question and in the current circumstances. Healthcare professionals 
must fi rst determine if the person still has capacity to accept or refuse 
What does 
treatment at the relevant time (section 25(3)). If the person has capacity, 
the Act say 
they can refuse treatment there and then. Or they can change their 
about advance 
decision and accept treatment. The advance decision is not applicable 
decisions to 
in such situations.
refuse treatment?
9.42   The advance decision must also apply to the proposed treatment. It is 
not applicable to the treatment in question if (section 25(4)):
•  the proposed treatment is not the treatment specifi ed in the advance 
decision
•  the circumstances are different from those that may have been set 
out in the advance decision, or
•  there are reasonable grounds for believing that there have been 
changes in circumstance, which would have affected the decision 
if the person had known about them at the time they made the 
advance decision.
9.43   So when deciding whether an advance decision applies to the 
proposed treatment, healthcare professionals must consider:
•  how long ago the advance decision was made, and
•  whether there have been changes in the patient’s personal life (for 
example, the person is pregnant, and this was not anticipated when 
they made the advance decision) that might affect the validity of the 
advance decision, and
•  whether there have been developments in medical treatment that the 
person did not foresee (for example, new medications, treatment or 
therapies).
9.44   For an advance decision to apply to life-sustaining treatment, it must 
meet the requirements set out in paragraphs 9.24–9.28.
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Mental Capacity Act Code of Practice
Scenario: Assessing if an advance decision is applicable
Mr Moss is HIV positive. Several years ago he began to have 
AIDS-related symptoms. He has accepted general treatment, but made 
an advance decision to refuse specific retro-viral treatments, saying 
he didn’t want to be a ‘guinea pig’ for the medical profession. Five 
years later, he is admitted to hospital seriously ill and keeps falling 
unconscious.
The doctors treating Mr Moss examine his advance decision. They are 
aware that there have been major developments in retro-viral treatment 
recently. They discuss this with Mr Moss’s partner and both agree 
that there are reasonable grounds to believe that Mr Moss may have 
changed his advance decision if he had known about newer treatment 
options. So the doctors decide the advance decision does not apply to 
the new retro-virals and give him treatment.
If Mr Moss regains his capacity, he can change his advance decision 
and accept or refuse future treatment.
What should healthcare professionals do if an advance 
decision is not valid or applicable?

9.45   If an advance decision is not valid or applicable to current 
circumstances:
•  healthcare professionals must consider the advance decision as part 
of their assessment of the person’s best interests (see chapter 5) if 
they have reasonable grounds to think it is a true expression of the 
person’s wishes, and
•  they must not assume that because an advance decision is either 
invalid or not applicable, they should always provide the specifi ed 
treatment (including life-sustaining treatment) – they must base this 
decision on what is in the person’s best interests.
What happens to decisions made before the Act comes into 
force?

9.46   Advance decisions made before the Act comes into force may still 
be valid and applicable. Healthcare professionals should apply the 
rules in the Act to advance decisions made before the Act comes into 
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Mental Capacity Act Code of Practice
force, subject to the transitional protections that will apply to advance 
decisions that refuse life-sustaining treatment. Further guidance will be 
Chapter 9
available at www.dh.gov.uk/consent.
What implications do advance decisions have for healthcare 
What does 
professionals?
the Act say 
about advance 
decisions to 
What are healthcare professionals’ responsibilities?
refuse treatment?
9.47   Healthcare professionals should be aware that:
•  a patient they propose to treat may have refused treatment in 
advance, and
•  valid and applicable advance decisions to refuse treatment have the 
same legal status as decisions made by people with capacity at the 
time of treatment.
9.48   Where appropriate, when discussing treatment options with people 
who have capacity, healthcare professionals should ask if there are any 
specifi c types of treatment they do not wish to receive if they ever lack 
capacity to consent in the future. 
9.49   If somebody tells a healthcare professional that an advance decision 
exists for a patient who now lacks capacity to consent, they should 
make reasonable efforts to fi nd out what the decision is. Reasonable 
efforts might include having discussions with relatives of the patient, 
looking in the patient’s clinical notes held in the hospital or contacting 
the patient’s GP.
9.50   Once they know a verbal or written advance decision exists, healthcare 
professionals must determine whether:
•  it is valid (see paragraph 9.40), and
•  it is applicable to the proposed treatment (see paragraphs 
9.41–9.44).
9.51   When establishing whether an advance decision applies to current 
circumstances, healthcare professionals should take special care if the 
decision does not seem to have been reviewed or updated for some 
time. If the person’s current circumstances are signifi cantly different 
from those when the decision was made, the advance decision may 
not be applicable. People close to the person concerned, or anyone 
named in the advance decision, may be able to help explain the 
person’s prior wishes.
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Mental Capacity Act Code of Practice
9.52  If healthcare professionals are satisfi ed that an advance decision to 
refuse treatment exists, is valid and is applicable, they must follow it 
and not provide the treatment refused in the advance decision.
9.53   If healthcare professionals are not satisfi ed that an advance decision 
exists that is both valid and applicable, they can treat the person 
without fear of liability. But treatment must be in the person’s best 
interests (see chapter 5). They should make clear notes explaining why 
they have not followed an advance decision which they consider to be 
invalid or not applicable.
9.54   Sometimes professionals can give or continue treatment while they 
resolve doubts over an advance decision. It may be useful to get 
information from someone who can provide information about the 
person’s capacity when they made the advance decision. The Court 
of Protection can settle disagreements about the existence, validity 
or applicability of an advance decision. Section 26 of the Act allows 
healthcare professionals to give necessary treatment, including life-
sustaining treatment, to stop a person’s condition getting seriously 
worse while the court decides.
Do advance decisions apply in emergencies?
9.55   A healthcare professional must provide treatment in the patient’s best 
interests, unless they are satisfi ed that there is a advance decision that is:
• valid, and
•  applicable in the circumstances.
9.56   Healthcare professionals should not delay emergency treatment to 
look for an advance decision if there is no clear indication that one 
exists. But if it is clear that a person has made an advance decision 
that is likely to be relevant, healthcare professionals should assess its 
validity and applicability as soon as possible. Sometimes the urgency 
of treatment decisions will make this diffi cult.
When can healthcare professionals be found liable?
9.57   Healthcare professionals must follow an advance decision if they are 
satisfi ed that it exists, is valid and is applicable to their circumstances. 
Failure to follow an advance decision in this situation could lead to a 
claim for damages for battery or a criminal charge of assault. 
9.58   But they are protected from liability if they are not:
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Mental Capacity Act Code of Practice
•  aware of an advance decision, or
• satisfi ed that an advance decision exists, is valid and is applicable 
Chapter 9
to the particular treatment and the current circumstances (section 
26(2)).
What does 
the Act say 
 
 If healthcare professionals have genuine doubts, and are therefore not 
about advance 
‘satisfied’, about the existence, validity or applicability of the advance 
decisions to 
decision, treatment can be provided without incurring liability.
refuse treatment?
9.59   Healthcare professionals will be protected from liability for failing 
to provide treatment if they ‘reasonably believe’ that a valid and 
applicable advance decision to refuse that treatment exists. But they 
must be able to demonstrate that their belief was reasonable (section 
26(3)) and point to reasonable grounds showing why they believe this. 
Healthcare professionals can only base their decision on the evidence 
that is available at the time they need consider an advance decision.
9.60   Some situations might be enough in themselves to raise concern about 
the existence, validity or applicability of an advance decision to refuse 
treatment. These could include situations when:
•  a disagreement between relatives and healthcare professionals 
about whether verbal comments were really an advance decision
•  evidence about the person’s state of mind raises questions about 
their capacity at the time they made the decision (see paragraphs 
9.7–9.9)
•  evidence of important changes in the person’s behaviour before they 
lost capacity that might suggest a change of mind.
 
 In cases where serious doubt remains and cannot be resolved in any 
other way, it will be possible to seek a declaration from the court.
What if a healthcare professional has a conscientious 
objection to stopping or providing life-sustaining treatment?

9.61   Some healthcare professionals may disagree in principle with patients’ 
rights to refuse life-sustaining treatment. The Act does not change the 
current legal situation. They do not have to do something that goes 
against their beliefs. But they must not simply abandon patients or 
cause their care to suffer.
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Mental Capacity Act Code of Practice
9.62   Healthcare professionals should make their views clear to the patient 
and the healthcare team as soon as someone raises the subject of 
withholding, stopping or providing life-sustaining treatment. Patients 
who still have capacity should then have the option of transferring 
their care to another healthcare professional, if it is possible to do this 
without affecting their care.
9.63   In cases where the patient now lacks capacity but has made a valid 
and applicable advance decision to refuse treatment which a doctor 
or health professional cannot, for reasons of conscience, comply with, 
arrangements should be made for the management of the patient’s 
care to be transferred to another healthcare professional.36 Where a 
transfer cannot be agreed, the Court of Protection can direct those 
responsible for the person’s healthcare (for example, a Trust, doctor 
or other health professional) to make arrangements to take over 
responsibility for the person’s healthcare (section 17(1)(e)).
What happens if there is a disagreement about an advance 
decision?

9.64   It is ultimately the responsibility of the healthcare professional who is 
in charge of the person’s care when the treatment is required to decide 
whether there is an advance decision which is valid and applicable in 
the circumstances. In the event of disagreement about an advance 
decision between healthcare professionals, or between healthcare 
professionals and family members or others close to the person, the 
senior clinician must consider all the available evidence. This is likely to 
be a hospital consultant or the GP where the person is being treated in 
the community.
9.65   The senior clinician may need to consult with relevant colleagues and 
others who are close to or familiar with the patient. All staff involved 
in the person’s care should be given the opportunity to express their 
views. If the person is in hospital, their GP may also have relevant 
information.
9.66   The point of such discussions should not be to try to overrule the 
person’s advance decision but rather to seek evidence concerning 
its validity and to confi rm its scope and its applicability to the current 
circumstances. Details of these discussions should be recorded in 
the person’s healthcare records. Where the senior clinician has a 
reasonable belief that an advance decision to refuse medical treatment 
is both valid and applicable, the person’s advance decision should be 
complied with.
36  Re B (Adult: Refusal of Medical Treatment) [2002] EWHC 429 (Fam) at paragraph 100(viii)
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Mental Capacity Act Code of Practice
When can somebody apply to the Court of Protection?
9.67   The Court of Protection can make a decision where there is genuine 
Chapter 9
doubt or disagreement about an advance decision’s existence, validity 
or applicability. But the court does not have the power to overturn a 
What does 
valid and applicable advance decision.
the Act say 
about advance 
9.68   The court has a range of powers (sections 16–17) to resolve disputes 
decisions to 
concerning the personal care and medical treatment of a person who 
refuse treatment?
lacks capacity (see chapter 8). It can decide whether:
•  a person has capacity to accept or refuse treatment at the time it is 
proposed
•  an advance decision to refuse treatment is valid
•  an advance decision is applicable to the proposed treatment in the 
current circumstances.
9.69   While the court decides, healthcare professionals can provide 
life-sustaining treatment or treatment to stop a serious deterioration in 
their condition. The court has emergency procedures which operate 
24 hours a day to deal with urgent cases quickly. See chapter 8 for 
guidance on applying to the court.
177

10 What is the new Independent Mental 
Capacity Advocate service and how 
does it work?
This chapter describes the new Independent Mental Capacity Advocate 
(IMCA) service created under the Act. The purpose of the IMCA service is to 
help particularly vulnerable people who lack the capacity to make important 
decisions about serious medical treatment and changes of accommodation, 
and who have no family or friends that it would be appropriate to consult 
about those decisions. IMCAs will work with and support people who lack 
capacity, and represent their views to those who are working out their best 
interests.
The chapter provides guidance both for IMCAs and for everyone who may 
need to instruct an IMCA. It explains how IMCAs should be appointed. It 
also explains the IMCA’s duties and the situations when an IMCA should be 
instructed. Both IMCAs and decision-makers are required to have regard to 
the Code of Practice.
In this chapter, as throughout the Code, a person’s capacity (or lack of 
capacity) refers specifi cally to their capacity to make a particular decision 
at the time it needs to be made.
Quick summary
Understanding the role of the IMCA service
•  The aim of the IMCA service is to provide independent safeguards for 
people who lack capacity to make certain important decisions and, at the 
time such decisions need to be made, have no-one else (other than paid 
staff) to support or represent them or be consulted.
•  IMCAs must be independent.
Instructing and consulting an IMCA
• An IMCA must be instructed, and then consulted, for people lacking 
capacity who have no-one else to support them (other than paid staff), 
whenever:
 – 
 
an NHS body is proposing to provide serious medical treatment, or
 – 
 
an NHS body or local authority is proposing to arrange accommodation 
(or a change of accommodation) in hospital or a care home, and
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Mental Capacity Act Code of Practice
 – 
 
the person will stay in hospital longer than 28 days, or
 – 
 
they will stay in the care home for more than eight weeks.
Chapter 10
• An IMCA may be instructed to support someone who lacks capacity to 
make decisions concerning:
What is the new 
 – 
 
care reviews, where no-one else is available to be consulted
Independent 
Mental Capacity 
 – 
 
adult protection cases, whether or not family, friends or others 
Advocate service 
are involved
and how does it 
work?
Ensuring an IMCA’s views are taken into consideration
•  The IMCA’s role is to support and represent the person who lacks capacity. 
Because of this, IMCAs have the right to see relevant healthcare and social 
care records.
•  Any information or reports provided by an IMCA must be taken into 
account as part of the process of working out whether a proposed decision 
is in the person’s best interests.
What is the IMCA service?
10.1   Sections 35–41 of the Act set up a new IMCA service that provides 
safeguards for people who:
•  lack capacity to make a specifi ed decision at the time it needs 
to be made
•  are facing a decision on a long-term move or about serious medical 
treatment and
•  have nobody else who is willing and able to represent them or be 
consulted in the process of working out their best interests.
10.2  Regulations made under the Act also state that IMCAs may be involved 
in other decisions, concerning:
•  a care review, or
•  an adult protection case.
 
In adult protection cases, an IMCA may be appointed even where 
family  members or others are available to be consulted.
10.3  Most people who lack capacity to make a specifi c decision will have 
people to support them (for example, family members or friends who 
take an interest in their welfare). Anybody working out a person’s best 
interests must consult these people, where possible, and take their 
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Mental Capacity Act Code of Practice
views into account (see chapter 5). But if a person who lacks capacity 
has nobody to represent them or no-one who it is appropriate to 
consult, an IMCA must be instructed in prescribed circumstances. 
The prescribed circumstances are:
•  providing, withholding or stopping serious medical treatment
•  moving a person into long-term care in hospital or a care home 
(see 10.11 for defi nition), or
•  moving the person to a different hospital or care home.
 
The only exception to this can be in situations where an urgent 
decision is needed. Further details on the situations where there is a 
duty to instruct an IMCA are given in paragraphs 10.40–10.58.
 
In other circumstances, an IMCA may be appointed for the person 
(see paragraphs 10.59–10.68). These include:
•  care reviews or
•  adult protection cases.
10.4  The IMCA will:
•  be independent of the person making the decision
•  provide support for the person who lacks capacity
•  represent the person without capacity in discussions to work out 
whether the proposed decision is in the person’s best interests
•  provide information to help work out what is in the person’s best 
interests (see chapter 5), and
•  raise questions or challenge decisions which appear not to be in the 
best interests of the person.
 
The information the IMCA provides must be taken into account by 
decision-makers whenever they are working out what is in a person’s 
best interests. See paragraphs 10.20–10.39 for more information on 
an IMCA’s role. For more information on who is a decision-maker, see 
chapter 5.
10.5  The IMCA service will build on good practice in the independent 
advocacy sector. But IMCAs have a different role from many other 
advocates. They:
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Mental Capacity Act Code of Practice
•  provide statutory advocacy
•  are instructed to support and represent people who lack capacity to 
Chapter 10
make decisions on specifi c issues
•  have a right to meet in private the person they are supporting
What is the new 
•  are allowed access to relevant healthcare records and social care 
Independent 
Mental Capacity 
records
Advocate service 
•  provide support and representation specifi cally while the decision is 
and how does it 
being made, and
work?
•  act quickly so their report can form part of decision-making.
Who is responsible for delivering the service?
10.6  The IMCA service is available in England and Wales. Both countries 
have regulations for setting up and managing the service.
• England’s regulations37 are available at www.opsi.gov.uk/si/
si200618.htm and www.opsi.gov.uk/si/dsis2006.htm. 
•  The regulations for Wales38 are available at www.new.wales.gov.uk/ 
consultations/closed/healandsoccarecloscons/.
 
 Guidance has been issued to local health boards and local authorities 
involved in commissioning IMCA services for their area.
37  The Mental Capacity Act 2005 (Independent Mental Capacity Advocate) (General) 
Regulations 2006 SI: 2006 /No 1832. The ‘General Regulations’. These regulations set 
out the details on how the IMCA will be appointed, the functions of the IMCA, including 
their role in challenging the decision-maker and include defi nitions of ‘serious medical 
treatment’ and ‘NHS body’.
 
The Mental Capacity Act 2005 (Independent Mental Capacity Advocate) (Expansion of 
Role) Regulations 2006 SI: 2883
. The ‘Expansion Regulations’. These regulations specify 
the circumstances in which local authorities and NHS bodies may provide the IMCA 
service on a discretionary basis. These include involving the IMCA in a care review and in 
adult protection cases.
38  The Mental Capacity Act 2005 (Independent Mental Capacity Advocate) (Wales) 
Regulations 2007 SI: /No (W.). These regulations will remain in draft form until they are 
made by the National Assembly for Wales. The target coming into force date is 1 October 
2007. Unlike the two sets of English regulations there will be one set only for Wales. 
Although the Welsh regulations will remain in draft form until the coming into force date, 
these have been drafted to give effect to similar and corresponding provisions to the 
regulations in England.
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Mental Capacity Act Code of Practice
10.7  In England the Secretary of State for Health delivers the service 
through local authorities, who work in partnership with NHS 
organisations. Local authorities have fi nancial responsibility for 
the service. In Wales the National Assembly for Wales delivers the 
service through local health boards, who have fi nancial responsibility 
for the service and work in partnership with local authority social 
services departments and other NHS organisations. The service is 
commissioned from independent organisations, usually advocacy 
organisations.
10.8  Local authorities or NHS organisations are responsible for instructing 
an IMCA to represent a person who lacks capacity. In these 
circumstances they are called the ‘responsible body’.
10.9  For decisions about serious medical treatment, the responsible body 
will be the NHS organisation providing the person’s healthcare or 
treatment. But if the person is in an independent or voluntary sector 
hospital, the responsible body will be the NHS organisation arranging 
and funding the person’s care, which should have arrangements in 
place with the independent or voluntary sector hospital to ensure an 
IMCA is appointed promptly. 
10.10  For decisions about admission to accommodation in hospital for 28 
days or more, the responsible body will be the NHS body that manages 
the hospital. For admission to an independent or voluntary sector 
hospital for 28 days or more, the responsible body will be the NHS 
organisation arranging and funding the person’s care. The independent 
or voluntary hospital must have arrangements in place with the NHS 
organisation to ensure that an IMCA can be appointed without delay.
10.11  For decisions about moves into long-term accommodation39 (for 
eight weeks or longer), or about a change of accommodation, the 
responsible body will be either:
•  the NHS body that proposes the move or change of accommodation 
(e.g. a nursing home), or
•  the local authority that has carried out an assessment of the person 
under the NHS and Community Care Act 1990 and decided the 
move may be necessary.
39  This may be accommodation in a care home, nursing home, ordinary and sheltered 
housing, housing association or other registered social housing or in private sector 
housing provided by a local authority or in hostel accommodation.
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Mental Capacity Act Code of Practice
10.12  Sometimes NHS organisations and local authorities will make decisions 
together about moving a person into long-term care. In these cases, 
Chapter 10
the organisation that must instruct the IMCA is the one that is ultimately 
responsible for the decision to move the person. The IMCA to be 
instructed is the one who works wherever the person is at the time that 
What is the new 
the person needs support and representation.
Independent 
Mental Capacity 
Advocate service 
What are the responsible body’s duties?
and how does it 
10.13  The responsible body:
work?
•  must instruct an IMCA to support and represent a person in the 
situations set out in paragraphs 10.40–10.58
•  may decide to instruct an IMCA in situations described in 
paragraphs 10.59–10.68
•  must, in all circumstances when an IMCA is instructed, take properly 
into account the information that the IMCA provides when working 
out whether the particular decision (such as giving, withholding 
or stopping treatment, changing a person’s accommodation, 
or carrying out a recommendation following a care review or an 
allegation requiring adult protection) is in the best interests of the 
person who lacks capacity.
10.14  The responsible body should also have procedures, training and 
awareness programmes to make sure that: 
•  all relevant staff know when they need to instruct an IMCA and are 
able to do so promptly
•  all relevant staff know how to get in touch with the IMCA service and 
know the procedure for instructing an IMCA
•  they record an IMCA’s involvement in a case and any information the 
IMCA provides to help decision-making
•  they also record how a decision-maker has taken into account the 
IMCA’s report and information as part of the process of working 
out the person’s best interests (this should include reasons for 
disagreeing with that advice, if relevant)
•  they give access to relevant records when requested by an IMCA 
under section 35(6)(b) of the Act
•  the IMCA gets information about changes that may affect the 
support and representation the IMCA provides
•  decision-makers let all relevant people know when an IMCA is 
working on a person’s case, and
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Mental Capacity Act Code of Practice
•  decision-makers inform the IMCA of the fi nal decision taken and the 
reason for it.
10.15  Sometimes an IMCA and staff working for the responsible body might 
disagree. If this happens, they should try to settle the disagreement 
through discussion and negotiation as soon as possible. If they 
cannot do this, they should then follow the responsible body’s formal 
procedures for settling disputes or complaints (see paragraphs 10.34 
to 10.39 below). 
10.16  In some situations the IMCA may challenge a responsible body’s 
decision, or they may help somebody who is challenging a decision. 
The General Regulations in England and the Regulations in Wales set 
out when this may happen (see also chapter 15). If there is no other 
way of resolving the disagreement, the decision may be challenged in 
the Court of Protection.
Who can be an IMCA?
10.17  In England, a person can only be an IMCA if the local authority 
approves their appointment. In Wales, the local health board will 
provide approval. Qualifi ed employees of an approved organisation 
can act as IMCAs. Local authorities and health boards will usually 
commission independent advocacy organisations to provide the IMCA 
service. These organisations will work to appropriate organisational 
standards set through the contracting/commissioning process. 
10.18  Individual IMCAs must:
• have specifi c experience
•  have IMCA training
•  have integrity and a good character, and
•  be able to act independently.
 
All IMCAs must complete the IMCA training in order that they can work 
as an independent mental capacity advocate. A national advocacy 
qualifi cation is also being developed, which will include the IMCA 
training.
 
Before a local authority or health board appoints an IMCA, they must 
carry out checks with the Criminal Records Bureau (CRB) to get a 
criminal record certifi cate or enhanced criminal record certifi cate for 
that individual.40
40  IMCAs were named as a group that is subject to mandatory checking under the new 
vetting and barring system in the Safeguarding Vulnerable Groups Act 2006. Roll-out of 
the bulk of the scheme will take place in 2008.
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Mental Capacity Act Code of Practice
10.19  IMCAs must be independent. People cannot act as IMCAs if they:
Chapter 10
•  care for or treat (in a paid or professional capacity) the person 
they will be representing (this does not apply if they are an existing 
advocate acting for that person), or
What is the new 
Independent 
•  have links to the person instructing them, to the decision-maker or 
Mental Capacity 
to other individuals involved in the person’s care or treatment that 
Advocate service 
may affect their independence.
and how does it 
work?
What is an IMCA’s role?
10.20  An IMCA must decide how best to represent and support the person 
who lacks capacity that they are helping. They:
• must confi rm that the person instructing them has the authority to 
do so
•  should interview or meet in private the person who lacks capacity, 
if possible
•  must act in accordance with the principles of the Act (as set out in 
section 1 of the Act and chapter 2 of the Code) and take account of 
relevant guidance in the Code
•  may examine any relevant records that section 35(6) of the Act gives 
them access to
•  should get the views of professionals and paid workers providing 
care or treatment for the person who lacks capacity
•  should get the views of anybody else who can give information 
about the wishes and feelings, beliefs or values of the person who 
lacks capacity
•  should get hold of any other information they think will be necessary
• must fi nd out what support a person who lacks capacity has had to 
help them make the specifi c decision
•  must try to fi nd out what the person’s wishes and feelings, beliefs 
and values would be likely to be if the person had capacity
• should fi nd out what alternative options there are
•  should consider whether getting another medical opinion would help 
the person who lacks capacity, and
•  must write a report on their fi ndings for the local authority or 
NHS body.
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Mental Capacity Act Code of Practice
10.21  Where possible, decision-makers should make decisions based on a 
full understanding of a person’s past and present wishes. The IMCA 
should provide the decision-maker with as much of this information as 
possible – and anything else they think is relevant. The report they give 
the decision-maker may include questions about the proposed action 
or may include suggested alternatives, if they think that these would be 
better suited to the person’s wishes and feelings.
10.22  Another important part of the IMCA’s role is communicating their 
fi ndings. Decision-makers should fi nd the most effective way to enable 
them to do this. In some of the IMCA pilot areas,41 hospital discharge 
teams added a ‘Need to instruct an IMCA?’ question on their patient or 
service user forms. This allowed staff to identify the need for an IMCA 
as early as possible, and to discuss the timetable for the decision to 
be made. Some decisions need a very quick IMCA response, others 
will allow more time. In the pilot areas, IMCA involvement led to better 
informed discharge planning, with a clearer focus on the best interests 
of a person who lacked capacity. It did not cause additional delays in 
the hospital discharge.
Representing and supporting the person who lacks capacity
10.23  IMCAs should take account of the guidance in chapter 5.
•  IMCAs should fi nd out whether the decision-maker has given all 
practical and appropriate support to help the person who lacks 
capacity to be involved as much as possible in decision-making. 
If the person has communication diffi culties, the IMCA should also 
fi nd out if the decision-maker has obtained any specialist help (for 
example, from a speech and language therapist).
•  Sometimes an IMCA may fi nd information to suggest a person 
might regain capacity in the future, either so they can make the 
decision themselves or be more involved in decision-making. In 
such a situation, the IMCA can ask the decision-maker to delay the 
decision, if it is not urgent.
•  The IMCA will need to get as much information as possible about 
the person’s wishes, feelings, beliefs and values – both past and 
present. They should also consider the person’s religion and any 
cultural factors that may infl uence the decision.
41  For further information see www.dh.gov.uk/imca
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Mental Capacity Act Code of Practice
10.24  Sometimes a responsible body will not have time to instruct an IMCA 
(for example in an emergency or if a decision is urgent). If this is the 
Chapter 10
case, this should be recorded, with the reason an IMCA has not been 
instructed. Where the decision concerns a move of accommodation, 
the local authority must appoint an IMCA as soon as possible 
What is the new 
afterwards. Sometimes the IMCA will not have time to carry out full 
Independent 
investigations. In these situations, the IMCA must make a judgement 
Mental Capacity 
Advocate service 
about what they can achieve in the time available to support and 
and how does it 
represent the person who lacks capacity. 
work?
10.25  Sometimes an IMCA might not be able to get a good picture of 
what the person might want. They should still try to make sure the 
decision-maker considers all relevant information by:
•  raising relevant issues and questions, and
•  providing additional, relevant information to help the fi nal decision.
Finding and evaluating information
10.26  Section 35(6) provides IMCAs with certain powers to enable them to 
carry out their duties. These include:
•  the right to have an interview in private with the person who lacks 
capacity, and
•  the right to examine, and take copies of, any records that the 
person holding the record thinks are relevant to the investigation 
(for example, clinical records, care plans, social care assessment 
documents or care home records).
10.27  The IMCA may also need to meet professionals or paid carers 
providing care or treatment for the person who lacks capacity. These 
people can help assess the information in case records or other 
sources. They can also comment on possible alternative courses of 
action. Ultimately, it is the decision-maker’s responsibility to decide 
whether a proposed course of action is in the person’s best interests. 
However, the Act requires the decision-maker to take account of the 
reports made and information given by the IMCA. In most cases a 
decision on the person’s best interests will be made through discussion 
involving all the relevant people who are providing care or treatment, 
as well as the IMCA.
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Mental Capacity Act Code of Practice
Finding out the person’s wishes and feelings, beliefs and values
10.28  The IMCA needs to try and fi nd out what the person’s wishes and 
feelings might be, and what their underlying beliefs and values might 
also be. The IMCA should try to communicate both verbally and 
non-verbally with the person who may lack capacity, as appropriate. 
For example, this might mean using pictures or photographs. But 
there will be cases where the person cannot communicate at all (for 
example, if they are unconscious). The IMCA may also talk to other 
professionals or paid carers directly involved in providing present or 
past care or treatment. The IMCA might also need to examine health 
and social care records and any written statements of preferences the 
person may have made while they still had capacity to do so. 
 
Chapter 5 contains further guidance on fi nding out the views of people 
who lack capacity. Chapter 3 contains further guidance on helping 
someone to make their own decision.
Considering alternative courses of action
10.29  The IMCA will need to check whether the decision-maker has 
considered all possible options. They should also ask whether the 
proposed option is less restrictive of the person’s rights or future 
choices or would allow them more freedom (chapter 2, principle 5). 
10.30  The IMCA may wish to discuss possible options with other 
professionals or paid carers directly involved in providing care or 
treatment for the person. But they must respect the confi dentiality of 
the person they are representing.
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Scenario: Using an IMCA
Chapter 10
Mrs Nolan has dementia. She is being discharged from hospital. She has 
no close family or friends. She also lacks the capacity to decide whether 
What is the new 
she should return home or move to a care home. The local authority 
Independent 
instructs an IMCA.
Mental Capacity 
Advocate service 
and how does it 
Mrs Nolan tells the IMCA that she wants to go back to her own home, 
work?
which she can remember and describe. But the hospital care team 
thinks she needs additional support, which can only be provided in a 
care home.
The IMCA reviewed all the assessments of Mrs Nolan’s needs, spoke to 
people involved in her care and wrote a report stating that Mrs Nolan had 
strong and clear wishes. The IMCA also suggested that a care package 
could be provided to support Mrs Nolan if she were allowed to return 
home. The care manager now has to decide what is in Mrs Nolan’s best 
interests. He must consider the views of the hospital care team and the 
IMCA’s report.
Getting a second medical opinion
10.31  For decisions about serious medical treatment, the IMCA may consider 
seeking a second medical opinion from a doctor with appropriate 
expertise. This puts a person who lacks the capacity to make a specifi c 
decision in the same position as a person who has capacity, who has 
the right to request a second opinion.
What happens if the IMCA disagrees with the decision-maker?
10.32  The IMCA’s role is to support and represent their client. They may do 
this through asking questions, raising issues, offering information and 
writing a report. They will often take part in a meeting involving different 
healthcare and social care staff to work out what is in the person’s best 
interests. There may sometimes be cases when an IMCA thinks that a 
decision-maker has not paid enough attention to their report and other 
relevant information and is particularly concerned about the decision 
made. They may then need to challenge the decision.
10.33  An IMCA has the same rights to challenge a decision as any other 
person caring for the person or interested in his welfare. The right 
of challenge applies both to decisions about lack of capacity and a 
person’s best interests. 
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10.34  Chapter 15 sets out how disagreements can be settled. The approach 
will vary, depending on the type and urgency of the disagreement. It 
could be a formal or informal approach.
 
Disagreements about health care or treatment
•  Consult the Patient Advice and Liaison Service (England)
•  Consult the Community Health Council (Wales)
•  Use the NHS Complaints Procedure
•  Refer the matter to the local continuing care review panel
•  Engage the services of the Independent Complaints Advocacy 
Service (England) or another advocate.
 
Disagreements about social care
•  Use the care home’s complaints procedure (if the person is in a 
care home)
•  Use the local authority complaints procedure.
10.35  Before using these formal methods, the IMCA and the decision-maker 
should discuss the areas they disagree about – particularly those that 
might have a serious impact on the person the IMCA is representing. 
The IMCA and decision-maker should make time to listen to each 
other’s views and to understand the reason for the differences. 
Sometimes these discussions can help settle a disagreement.
10.36  Sometimes an IMCA service will have a steering group, with 
representatives from the local NHS organisations and the local 
authority. These representatives can sometimes negotiate between 
two differing views. Or they can clarify policy on a certain issue. They 
should also be involved if an IMCA believes they have discovered poor 
practice on an important issue.
10.37  IMCAs may use complaints procedures as necessary to try to settle a 
disagreement – and they can pursue a complaint as far as the relevant 
ombudsman if needed. In particularly serious or urgent cases, an IMCA 
may seek permission to refer a case to the Court of Protection for a 
decision. The Court will make a decision in the best interests of the 
person who lacks capacity.
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10.38 The fi rst step in making a formal challenge is to approach the Offi cial 
Solicitor (OS) with the facts of the case. The OS can decide to apply to 
Chapter 10
the court as a litigation friend (acting on behalf of the person the IMCA 
is representing). If the OS decides not to apply himself, the IMCA can 
ask for permission to apply to the Court of Protection. The OS can still 
What is the new 
be asked to act as a litigation friend for the person who lacks capacity.
Independent 
Mental Capacity 
Advocate service 
10.39  In extremely serious cases, the IMCA might want to consider an 
and how does it 
application for judicial review in the High Court. This might happen if 
work?
the IMCA thinks there are very serious consequences to a decision that 
has been made by a public authority. There are time limits for making 
an application, and the IMCA would have to instruct solicitors – and 
may be liable for the costs of the case going to court. So IMCAs should 
get legal advice before choosing this approach. The IMCA can also ask 
the OS to consider making the claim.
What decisions require an IMCA?
10.40  There are three types of decisions which require an IMCA to be 
instructed for people who lack capacity. These are:
•  decisions about providing, withholding or stopping serious medical 
treatment
•  decisions about whether to place people into accommodation (for 
example a care home or a long stay hospital), and
•  decisions about whether to move people to different long stay 
accommodation.
 
For these decisions all local authorities and all health bodies must refer 
the same kinds of decisions to an IMCA for anyone who lacks capacity 
and qualifi es for the IMCA service.
10.41  There are two further types of decisions where the responsible body 
has the power to instruct an IMCA for a person who lacks capacity. 
These are decisions relating to:
•  care reviews and
•  adult protection cases.
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In such cases, the relevant local authority or NHS body must decide 
in each individual case whether it would be of particular benefi t to the 
person who lacks capacity to have an IMCA to support them. The 
factors which should be considered are explained in paragraphs 
10.59–10.68.42
Decisions about serious medical treatment
10.42  Where a serious medical treatment decision is being considered for 
a person who lacks the capacity to consent, and who qualifi es for 
additional safeguards, section 37 of the Act imposes a duty on the 
NHS body to instruct an IMCA. NHS bodies must instruct an IMCA 
whenever they are proposing to take a decision about ‘serious medical 
treatment’, or proposing that another organisation (such as a private 
hospital) carry out the treatment on their behalf, if:
•  the person concerned does not have the capacity to make a 
decision about the treatment, and
•  there is no-one appropriate to consult about whether the decision is 
in the person’s best interests, other than paid care staff.
10.43  Regulations for England and Wales set out the defi nition of ‘serious 
medical treatment’ for decisions that require an IMCA. It includes 
treatments for both mental and physical conditions.
 
Serious medical treatment is defi ned as treatment which involves 
giving new treatment, stopping treatment that has already started or 
withholding treatment that could be offered in circumstances where:
•  if a single treatment is proposed there is a fi ne balance between the 
likely benefi ts and the burdens to the patient and the risks involved
•  a decision between a choice of treatments is fi nely balanced, or
•  what is proposed is likely to have serious consequences for the 
patient.
10.44  ‘Serious consequences’ are those which could have a serious impact 
on the patient, either from the effects of the treatment itself or its wider 
implications. This may include treatments which:
•  cause serious and prolonged pain, distress or side effects
42  See chapter 11 for information about the role of ‘consultees’ when research is proposed 
involving a person who lacks capacity to make a decision about whether to agree to take 
part in research. In certain situations IMCAs may be involved as consultees for research 
purposes.
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•  have potentially major consequences for the patient (for example, 
stopping life-sustaining treatment or having major surgery such as 
Chapter 10
heart surgery), or
•  have a serious impact on the patient’s future life choices (for 
example, interventions for ovarian cancer).
What is the new 
Independent 
Mental Capacity 
10.45  It is impossible to set out all types of procedures that may amount 
Advocate service 
to ‘serious medical treatment’, although some examples of medical 
and how does it 
treatments that might be considered serious include:
work?
•  chemotherapy and surgery for cancer
• electro-convulsive therapy
• therapeutic sterilisation
•  major surgery (such as open-heart surgery or brain/neuro-surgery)
•  major amputations (for example, loss of an arm or leg)
•  treatments which will result in permanent loss of hearing or sight
•  withholding or stopping artifi cial nutrition and hydration, and
•  termination of pregnancy.
 
These are illustrative examples only, and whether these or other 
procedures are considered serious medical treatment in any given 
case, will depend on the circumstances and the consequences 
for the patient. There are also many more treatments which will be 
defi ned as serious medical treatments under the Act’s regulations. 
Decision-makers who are not sure whether they need to instruct an 
IMCA should consult their colleagues.
10.46  The only situation in which the duty to instruct an IMCA need not be 
followed, is when an urgent decision is needed (for example, to save 
the person’s life). This decision must be recorded with the reason 
for the non-referral. Responsible bodies will however still need to 
instruct an IMCA for any serious treatment that follows the emergency 
treatment. 
10.47  While a decision-maker is waiting for the IMCA’s report, they must still 
act in the person’s best interests (for example, to give treatment that 
stops the person’s condition getting worse).
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Scenario: Using an IMCA for serious medical treatment
Mr Jones had a fall and suffered serious head injuries. Hospital staff 
could not fi nd any family or friends. He needed urgent surgery, but 
afterwards still lacked capacity to accept or refuse medical treatment.
The hospital did not involve an IMCA in the decision to operate, because 
it needed to make an emergency decision. But it did instruct an IMCA 
when it needed to carry out further serious medical treatment.
The IMCA met with Mr Jones looked at his case notes and reviewed 
the options with the consultant. The decision-maker then made the 
clinical decision about Mr Jones’ best interests taking into account the 
IMCA’s report.
10.48  Some decisions about medical treatment are so serious that the courts 
need to make them (see chapter 8). But responsible bodies should still 
instruct an IMCA in these cases. The OS may be involved as a litigation 
friend of the person who lacks capacity.
10.49  Responsible bodies do not have to instruct an IMCA for patients 
detained under the Mental Health Act 1983, if:
•  the treatment is for mental disorder, and
•  they can give it without the patient’s consent under that Act.
10.50  If serious medical treatment proposed for the detained patient is not for 
their mental disorder, the patient then has a right to an IMCA – as long 
as they meet the Mental Capacity Act’s requirements. So a detained 
patient without capacity to consent to cancer treatment, for example, 
should qualify for an IMCA if there are no family or friends whom it 
would be appropriate to consult.
Decisions about accommodation or changes of residence
10.51  The Act imposes similar duties on NHS bodies and local authorities 
who are responsible for long-term accommodation decisions for a 
person who lacks the capacity to agree to the placement and who 
qualifi es for the additional safeguard of an IMCA. The right to an IMCA 
applies to decisions about long-term accommodation in a hospital or 
care home if it is:
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•  provided or arranged by the NHS, or
•  residential care that is provided or arranged by the local authority or 
Chapter 10
provided under section 117 of the Mental Health Act 1983, or
•  a move between such accommodation.
What is the new 
Independent 
10.52  Responsible bodies have a duty to instruct an IMCA if:
Mental Capacity 
Advocate service 
•  an NHS organisation proposes to place a person who lacks capacity 
and how does it 
work?
in a hospital – or to move them to another hospital – for longer than 
28 days, or
•  an NHS organisation proposes to place a person who lacks capacity 
in a care home – or to move them to a different care home – for what 
is likely to be longer than eight weeks.
 
In either situation the other qualifying conditions apply. So, if the 
accommodation is for less than 28 days in a hospital or less than 
8 weeks in a care home, then an IMCA need not be appointed.
10.53  The duty also applies if a local authority carries out an assessment 
under section 47 of the NHS and Community Care Act 1990, and it 
decides to:
•  provide care services for a person who lacks capacity in the form 
of residential accommodation in a care home or its equivalent (see 
paragraph 10.11) which is likely to be longer than eight weeks, or
•  move a person who lacks capacity to another care home or its 
equivalent for a period likely to exceed eight weeks.
10.54  In some cases, a care home may decide to de-register so that they can 
provide accommodation and care in a different way. If a local authority 
makes the new arrangements, then an IMCA should still be instructed if 
a patient lacks capacity and meets the other qualifying conditions.
10.55  Sometimes a person’s placement will be longer than expected. The 
responsible body should involve an IMCA as soon as they realise the 
stay will be longer than 28 days or eight weeks, as appropriate.
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10.56  People who fund themselves in long-term accommodation have the 
same rights to an IMCA as others, if the local authority:
•  carries out an assessment under section 47 of the NHS and 
Community Care Act 1990, and
•  decides it has a duty to the person (under either section 21 or 29 
of the National Assistance Act 1947 or section 117 of the Mental 
Health Act 1983).
10.57  Responsible bodies can only put aside the duty to involve an IMCA 
if the placement or move is urgent (for example, an emergency 
admission to hospital or possible homelessness). The decision-maker 
must involve an IMCA as soon as possible after making an emergency 
decision, if:
•  the person is likely to stay in hospital for longer than 28 days, or
•  they will stay in other accommodation for longer than eight weeks.
10.58  Responsible bodies do not have to involve IMCAs if the person 
in question is going to be required to stay in the accommodation 
under the Mental Health Act 1983. But if a person is discharged from 
detention, they have a right to an IMCA in future accommodation 
decisions (if they meet the usual conditions set out in the Act).
When can a local authority or NHS body decide to instruct 
an IMCA?

10.59  The Expansion Regulations have given local authorities and NHS 
bodies the power to apply the IMCA role to two further types of 
decisions:
•  a care review, and
•  adult protection cases that involve vulnerable people.
10.60  In these situations, the responsible body must consider in each 
individual case whether to instruct an IMCA. Where an IMCA is 
instructed:
•  the decision-maker must be satisfi ed that having an IMCA will be of 
particular benefi t to the person who lacks capacity
•  the decision-maker must also follow the best interests checklist, 
including getting the views of anyone engaged in caring for a person 
when assessing their best interests, and
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•  the decision-maker must consider the IMCA’s report and related 
information when making a decision.
Chapter 10
10.61  Responsible bodies are expected to take a strategic approach in 
deciding when they will use IMCAs in these two additional situations. 
What is the new 
They should establish a policy locally for determining these decisions, 
Independent 
setting out the criteria for appointing an IMCA including the issues to 
Mental Capacity 
Advocate service 
be taken into account when deciding if an IMCA will be of particular 
and how does it 
benefi t to the person concerned. However, decision-makers will need 
work?
to consider each case separately to see if the criteria are met. Local 
authorities or NHS bodies may want to publish their approach for ease 
of access, setting out the ways they intend to use these additional 
powers and review it periodically.
Involving an IMCA in care reviews
10.62  A responsible body can instruct an IMCA to support and represent a 
person who lacks capacity when:
•  they have arranged accommodation for that person
•  they aim to review the arrangements (as part of a care plan or 
otherwise), and
•  there are no family or friends who it would be appropriate to consult.
10.63  Section 7 of the Local Authority Social Services Act 1970 sets out 
current requirements for care reviews. It states that there should be a 
review ‘within three months of help being provided or major changes 
made to services’. There should then be a review every year – or more 
often, if needed.
10.64  Reviews should relate to decisions about accommodation:
•  for someone who lacks capacity to make a decision about 
accommodation
•  that will be provided for a continuous period of more than 12 weeks
•  that are not the result of an obligation under the Mental Health Act 
1983, and
•  that do not relate to circumstances where sections 37 to 39 of the 
Act would apply.
10.65  Where the person is to be detained or required to live in 
accommodation under the Mental Health Act 1983, an IMCA will not be 
needed since the safeguards available under that Act will apply.
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Mental Capacity Act Code of Practice
Involving IMCAs in adult protection cases
10.66  Responsible bodies have powers to instruct an IMCA to support and 
represent a person who lacks capacity where it is alleged that:
•  the person is or has been abused or neglected by another person, or
•  the person is abusing or has abused another person.
 
 The responsible bodies can only instruct an IMCA if they propose to 
take, or have already taken, protective measures. This is in accordance 
with adult protection procedures set up under statutory guidance.43
10.67  In adult protection cases (and no other cases), access to IMCAs is 
not restricted to people who have no-one else to support or represent 
them. People who lack capacity who have family and friends can still 
have an IMCA to support them in the adult protection procedures.
10.68  In some situations, a case may start out as an adult protection case 
where a local authority may consider whether or not to involve an 
IMCA under the criteria they have set – but may then become a case 
where the allegations or evidence give rise to the question of whether 
the person should be moved in their best interests. In these situations 
the case has become one where an IMCA must be involved if there 
is no-one else appropriate to support and represent the person in 
this decision.
Who qualifies for an IMCA?
10.69  Apart from the adult protection cases discussed above, IMCAs are only 
available to people who:
•  lack capacity to make a specifi c decision about serious medical 
treatment or long-term accommodation, and
•  have no family or friends who are available and appropriate to 
support or represent them apart from professionals or paid workers 
providing care or treatment, and
•  have not previously named someone who could help with a 
decision, and
43 Published guidance: No secrets: Guidance on developing and implementing multi-agency 
policies and procedures to protect vulnerable adults from abuse for England (on the 
Department of Health website) and In safe hands in Wales. 
 
No secrets applies to adults aged 18 or over. The Children Act 1989 applies to 16 and 17 
year olds who may be facing abuse. Part V of the Act covers the Protection of Children, 
which includes at section 47 the duty to investigate by a local authority in order to decide 
whether they should take any action to safeguard or promote a child’s welfare where he or 
she requires protection or may suffer harm. See also chapter 12 of this Code.
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•  have not made a Lasting Power of Attorney or Enduring Power of 
Attorney (see paragraph 10.70 below).
Chapter 10
10.70  The Act says that IMCAs cannot be instructed if:
What is the new 
•  a person who now lacks capacity previously named a person that 
Independent 
should be consulted about decisions that affect them, and that 
Mental Capacity 
Advocate service 
person is available and willing to help
and how does it 
•  the person who lacks capacity has appointed an attorney, either 
work?
under a Lasting Power of Attorney or an Enduring Power of Attorney, 
and the attorney continues to manage the person’s affairs
•  the Court of Protection has appointed a deputy, who continues to 
act on the person’s behalf.
10.71  However, where a person has no family or friends to represent them, 
but does have an attorney or deputy who has been appointed solely 
to deal with their property and affairs, they should not be denied 
access to an IMCA. The Government is seeking to amend the Act at 
the earliest opportunity to ensure that, in such circumstances, an IMCA 
should always be appointed to represent the person’s views when 
they lack the capacity to make decisions relating to serious medical 
treatment or long-term accommodation moves.
10.72  A responsible body can still instruct an IMCA if the Court of Protection 
is deciding on a deputy, but none is in place when a decision needs to 
be made.
Scenario: Qualifying for an IMCA
Ms Lewis, a woman with a history of mental health problems has lived 
in a care home for several years. Her home will soon close, and she 
has no-one who could help her. She has become very anxious and now 
lacks capacity to make a decision about future accommodation. The 
local authority instructs an IMCA to support her. The IMCA visits Ms 
Lewis, talks to staff who have been involved in her care and reviews her 
case notes.
In his report, the IMCA includes the information that Ms Lewis is very 
close to another client in the care home. The IMCA notes that they 
could move together – if it is also in the interests of the other client. The 
local authority now has to decide on the best interests of the client, 
considering the information that the IMCA has provided.
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Will IMCAs be available to people in prisons?
10.73  IMCAs should be available to people who are in prison and lack 
capacity to make decisions about serious medical treatment or 
long-term accommodation.
Who is it ‘appropriate to consult’?
10.74  The IMCA is a safeguard for those people who lack capacity, who 
have no-one close to them who ‘it would be appropriate to consult’. 
(This is apart from adult protection cases where this criterion does not 
apply.) The safeguard is intended to apply to those people who have 
little or no network of support, such as close family or friends, who 
take an interest in their welfare or no-one willing or able to be formally 
consulted in decision-making processes.
10.75  The Act does not defi ne those ‘whom it would be appropriate 
to consult’ and the evaluation of the IMCA pilots reported that 
decision-makers in the local authority and in the NHS, whose decision 
it is to determine this, sometimes found it diffi cult to establish when an 
IMCA was required.44 Section 4(7) provides that consultation about a 
person’s best interests shall include among others, anyone:
•  named by the person as someone to be consulted on a relevant 
decision
•  engaged in caring for them, or
•  interested in their welfare (see chapter 4).  
10.76  The decision-maker must determine if it is possible and practical to 
speak to these people, and those described in paragraph 10.70 when 
working out whether the proposed decision is in the person’s best 
interests. If it is not possible, practical and appropriate to consult 
anyone, an IMCA should be instructed.
10.77  There may be situations where a person who lacks capacity has family 
or friends, but it is not practical or appropriate to consult them. For 
example, an elderly person with dementia may have an adult child who 
now lives in Australia, or an older person may have relatives who very 
rarely visit. Or, a family member may simply refuse to be consulted. 
In such cases, decision-makers must instruct an IMCA – for serious 
medical treatment and care moves and record the reason for 
the decision. 
44  see www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/SocialCare/IMCA/fs/en
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10.78  The person who lacks capacity may have friends or neighbours who 
know their wishes and feelings but are not willing or able to help with 
Chapter 10
the specifi c decision to be made. They may think it is too much of a 
responsibility. If they are elderly and frail themselves, it may be too 
diffi cult for them to attend case conferences and participate formally. 
What is the new 
In this situation, the responsible body should instruct an IMCA, and the 
Independent 
IMCA may visit them and enable them to be involved more informally.
Mental Capacity 
Advocate service 
and how does it 
10.79  If a family disagrees with a decision-maker’s proposed action, this 
work?
is not grounds for concluding that there is nobody whose views are 
relevant to the decision. 
10.80  A person who lacks capacity and already has an advocate may still be 
entitled to an IMCA. The IMCA would consult with the advocate. Where 
that advocate meets the appointment criteria for the IMCA service, 
they may be appointed to fulfi l the IMCA role for this person in addition 
to their other duties.
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11 How does the Act affect research 
projects involving a person who 
lacks capacity?
It is important that research involving people who lack capacity can be 
carried out, and that is carried out properly. Without it, we would not improve 
our knowledge of what causes a person to lack or lose capacity, and the 
diagnosis, treatment, care and needs of people who lack capacity.
This chapter gives guidance on involving people who lack capacity to consent 
to take part in research. It sets out:
•  what the Act means by ‘research’
•  the requirements that people must meet if their research project involves 
somebody who lacks capacity
• the specifi c responsibilities of researchers, and
•  how the Act applies to research that started before the Act came into force.
This chapter only deals with research in relation to adults. Further guidance 
will be provided on how the Act applies in relation to research involving those 
under the age of 18.
In this chapter, as throughout the Code, a person’s capacity (or lack of 
capacity) refers specifi cally to their capacity to make a particular decision 
at the time it needs to be made.
Quick summary
The Act’s rules for research that includes people who lack capacity to consent 
to their involvement cover:
•  when research can be carried out
•  the ethical approval process
•  respecting the wishes and feelings of people who lack capacity
•  other safeguards to protect people who lack capacity
•  how to engage with a person who lacks capacity
•  how to engage with carers and other relevant people.
This chapter also explains:
• the specifi c rules that apply to research involving human tissue and
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•  what to do if research projects have already been given the go-ahead.
Chapter 11
The Act applies to all research that is intrusive. ‘Intrusive’ means research 
that would be unlawful if it involved a person who had capacity but had not 
consented to take part. The Act does not apply to research involving clinical 
How does 
trials (testing new drugs).
the Act affect 
research projects 
involving a 
Why does the Act cover research?
person who lacks 
capacity?
11.1   Because the Act is intended to assist and support people who may 
lack capacity, the Act protects people who take part in research 
projects but lack capacity to make decisions about their involvement. 
It makes sure that researchers respect their wishes and feelings. The 
Act does not apply to research that involves clinical trials of medicines 
– because these are covered by other rules.45
How can research involving people who lack capacity help?
A high percentage of patients with Down’s syndrome lack capacity to 
agree or refuse to take part in research. Research involving patients with 
Down’s syndrome has shown that they are more likely than other people 
to get pre-senile dementia. Research has also shown that when this 
happens the pathological changes that occur in a person with Down’s 
syndrome (changes affecting their body and brain) are similar to those 
that occur in someone with Alzheimer’s disease. This means that we now 
know that treatment similar to that used for memory disorders in patients 
with Alzheimer’s is appropriate to treat dementia in those with Down’s 
syndrome.
What is ‘research’?
11.2  The Act does not have a specifi c defi nition for ‘research’. The 
Department of Health and National Assembly for Wales publications 
Research governance framework for health and social care both state: 
 
‘research can be defi ned as the attempt to derive generalisable new 
knowledge by addressing clearly defi ned questions with systematic 
and rigorous methods.’46
45  The Medicines for Human Use (Clinical Trials) Regulations 2004.
46 www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/
PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4008777&chk=dMRd/5 and 
www.word.wales.gov.uk/content/governance/governance-e.htm
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 Research 
may:
•  provide information that can be applied generally to an illness, 
disorder or condition
•  demonstrate how effective and safe a new treatment is
•  add to evidence that one form of treatment works better than 
another
•  add to evidence that one form of treatment is safer than another, or
•  examine wider issues (for example, the factors that affect someone’s 
capacity to make a decision).
11.3   Researchers must state clearly if an activity is part of someone’s care 
and not part of the research. Sometimes experimental medicine or 
treatment may be performed for the person’s benefi t and be the best 
option for their care. But in these cases, it may be diffi cult to decide 
whether treatment is research or care. Where there is doubt, the 
researcher should seek legal advice.
What assumptions can a researcher make about capacity?
11.4   Researchers should assume that a person has capacity, unless there 
is  proof that they lack capacity to make a specifi c decision (see 
chapter 3). The person must also receive support to try to help them 
make their own decision (see chapter 2). The person whose capacity is 
in question has the right to make decisions that others might not agree 
with, and they have the right not to take part in research.
What research does the Act cover?
11.5  It is expected that most of the researchers who ask for their research to 
be approved under the Act will be medical or social care researchers. 
However, the Act can cover more than just medical and social care 
research. Intrusive research which does not meet the requirements of 
the Act cannot be carried out lawfully in relation to people who lack 
capacity.
11.6  The Act applies to research that:
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Mental Capacity Act Code of Practice
•  is ‘intrusive’ (if a person taking part had capacity, the researcher 
would need to get their consent to involve them)
Chapter 11
•  involves people who have an impairment of, or a disturbance in 
the functioning of, their mind or brain which makes them unable to 
decide whether or not to agree to take part in the research (i.e. they 
How does 
the Act affect 
lack capacity to consent), and
research projects 
•  is not a clinical trial covered under the Medicines for Human Use 
involving a 
person who lacks 
(Clinical Trials) Regulations 2004.
capacity?
11.7  There are circumstances where no consent is needed to lawfully 
involve a person in research. These apply to all persons, whether they 
have capacity or not:
•  Sometimes research only involves data that has been anonymised 
(it cannot be traced back to individuals). Confi dentiality and data 
protection laws do not apply in this case.
•  Under the Human Tissue Act 2004, research that deals only with 
human tissue that has been anonymised does not require consent 
(see paragraphs 11.37–11.40). This applies to both those who have 
capacity and those who do not. But the research must have ethical 
approval, and the tissue must come from a living person.47 
•  If researchers collected human tissue samples before 31 August 
2006, they do not need a person’s consent to work on them. But 
they will normally have to get ethical approval. 
• Regulations48 made under section 251 of the NHS Act 2006 
(formerly known as section 60 of the Health and Social Care Act 
200149) allow people to use confi dential patient information without 
breaking the law on confi dentiality by applying to the Patient 
Information Advisory Group for approval on behalf of the Secretary 
of State.50
Who is responsible for making sure research meets the Act’s 
requirements?

11.8   Responsibility for meeting the Act’s requirements lies with:
47  Human Tissue Act 2004 section 1(9). 
48  Health Service (Control of Patient Information) Regulations 2002 Section I. 2002/1438.
49  Section 60 of the Health and Social Care Act 2001 was included in the NHS Act 2006 
which consolidated all the previous health legislation still in force.
50  The Patient Information Advisory Group considers applications on behalf of the Secretary 
of State to allow the common law duty of confi dentiality to be aside. It was established 
under section 61of the Health and Social Care Act 2006 (now known as section 252 of the 
NHS Act 2006). Further information can be found at www.advisorybodies.doh.gov.uk/PIAG.
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Mental Capacity Act Code of Practice
•  the ‘appropriate body’, as defi ned in regulations made by the 
Secretary of State (for regulations applying in England) or the 
National Assembly for Wales (for regulations applying in Wales) 
(see paragraph 11.10), and
•  the researchers carrying out the research (see paragraphs 
11.20–11.40).
How can research get approval?
11.9  Research covered by the Act cannot include people who lack capacity 
to consent to the research unless:
•  it has the approval of ‘the appropriate body’, and
•  it follows other requirements in the Act to:
 – 
 
consider the views of carers and other relevant people
 – 
 
treat the person’s interests as more important than those of 
science and society, and
 – 
 
respect any objections a person who lacks capacity makes 
during research.
11.10  An ‘appropriate body’ is an organisation that can approve research 
projects. In England, the ‘appropriate body’ must be a research ethics 
committee recognised by the Secretary of State.51 In Wales, the 
‘appropriate body’ must be a research ethics committee recognised by 
the Welsh Assembly Government.
11.11  The appropriate body can only approve a research project if the 
research is linked to:
•  an impairing condition that affects the person who lacks capacity, or
•  the treatment of that condition (see paragraph 11.17)
 
and:
•  there are reasonable grounds for believing that the research would 
be less effective if only people with capacity are involved, and
•  the research project has made arrangements to consult carers and 
to follow the other requirements of the Act.
51  Mental Capacity Act 2005 (Appropriate Body) (England) Regulations 2006
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Mental Capacity Act Code of Practice
11.12  Research must also meet one of two requirements:
Chapter 11
 1. 
 
The research must have some chance of benefi ting the person who 
lacks capacity, as set out in paragraph 11.14 below. The benefi t 
must be in proportion to any burden caused by taking part, or
How does 
the Act affect 
 2. 
 
The aim of the research must be to provide knowledge about the 
research projects 
involving a 
cause of, or treatment or care of people with, the same impairing 
person who lacks 
condition – or a similar condition.
capacity?
 
If researchers are relying on the second requirement, the Act sets out 
further requirements that must be met:
•  the risk to the person who lacks capacity must be negligible
•  there must be no signifi cant interference with the freedom of action 
or privacy of the person who lacks capacity, and
•  nothing must be done to or in relation to the person who lacks 
capacity which is unduly invasive or restrictive (see paragraphs 
11.16–11.19 below).
11.13  An impairing condition:
•  is caused by (or may be caused by) an impairment of, or disturbance 
in the functioning of, the person’s mind or brain
•  causes (or may cause) an impairment or disturbance of the mind or 
brain, or
•  contributes to (or may contribute to) an impairment or disturbance of 
the mind or brain.
Balancing the benefit and burden of research
11.14 Potential benefi ts of research for a person who lacks capacity 
could include:
•  developing more effective ways of treating a person or managing 
their condition
•  improving the quality of healthcare, social care or other services that 
they have access to
•  discovering the cause of their condition, if they would benefi t from 
that knowledge, or
•  reducing the risk of the person being harmed, excluded or 
disadvantaged.
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Mental Capacity Act Code of Practice
11.15 Benefi ts may be direct or indirect (for example, the person might 
benefi t at a later date if policies or care packages affecting them 
are changed because of the research). It might be that participation 
in the research itself will be of benefi t to the person in particular 
circumstances. For example, if the research involves interviews and 
the person has the opportunity to express their views, this could be 
considered of real benefi t to a particular individual.
Providing knowledge about causes, treatment or care of people with the 
same impairing condition or a similar condition

11.16  It is possible for research to be carried out which doesn’t actually 
benefi t the person taking part, as long as it aims to provide knowledge 
about the causes, treatment or care of people with the same impairing 
condition, or a similar condition. ‘Care’ and ‘treatment’ are not limited 
to medical care and treatment. For example, research could examine 
how day-to-day life in prison affects prisoners with mental health 
conditions.
11.17  It is the person’s actual condition that must be the same or similar in 
research, not the underlying cause. A ‘similar condition’ may therefore 
have a different cause to that suffered by the participant. For example, 
research into ways of supporting people with learning disabilities to live 
more independently might involve a person with a learning disability 
caused by a head trauma. But its fi ndings might help people with 
similar learning disabilities that have different causes.
Scenario: Research that helps fi nd a cause or treatment
Mr Neal has Down’s syndrome. For many years he has lived in supported 
housing and worked in a local supermarket. But several months ago, he 
became aggressive, forgetful and he started to make mistakes at work. 
His consultant believes that this may indicate the start of Alzheimer’s 
disease.
Mr Neal’s condition is now so bad that he does not have capacity to 
consent to treatment or make other decisions about his care. A research 
team is researching the cause of dementia in people with Down’s 
syndrome. They would like to involve Mr Neal. The research satisfi es the 
Act’s requirement that it is intended to provide knowledge of the causes 
or treatment of that condition, even though it may not directly benefi t 
Mr Neal. So the approving body might give permission – if the research 
meets other requirements.
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Mental Capacity Act Code of Practice
11.18  Any risk to people involved in this category of research must be 
‘negligible’ (minimal). This means that a person should suffer no 
Chapter 11
harm or distress by taking part. Researchers must consider risks 
to psychological wellbeing as well as physical wellbeing. This is 
particularly relevant for research related to observations or interviews.
How does 
the Act affect 
11.19  Research in this category also must not affect a person’s freedom 
research projects 
involving a 
of action or privacy in a signifi cant way, and it should not be unduly 
person who lacks 
invasive or restrictive. What will be considered as unduly invasive will 
capacity?
be different for different people and different types of research. For 
example, in psychological research some people may think a specifi c 
question is intrusive, but others would not. Actions will not usually be 
classed as unduly invasive if they do not go beyond the experience 
of daily life, a routine medical examination or a psychological 
examination.
Scenario: Assessing the risk to research participants
A research project is studying:
•  how well people with a learning disability make fi nancial decisions, 
and
•  communication techniques that may improve their decision-making 
capacity.
Some of the participants lack capacity to agree to take part. The 
Research Ethics Committee is satisfi ed that some of these participants 
may benefi t from the study because their capacity to make fi nancial 
decisions may be improved. For those who will not gain any personal 
benefi t, the Committee is satisfi ed that:
•  the research meets the other conditions of the Act
•  the research methods (psychological testing and different 
communication techniques) involve no risk to participants, and
•  the research could not have been carried out as effectively with 
people who have capacity.
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Mental Capacity Act Code of Practice
What responsibilities do researchers have?
11.20  Before starting the research, the research team must make 
arrangements to:
•  obtain approval for the research from the ‘appropriate body’
•  get the views of any carers and other relevant people before 
involving a person who lacks capacity in research (see paragraphs 
11.22–11.28). There is an exception to this consultation requirement 
in situations where urgent treatment needs to be given or is about to 
be given
•  respect the objections, wishes and feelings of the person, and
•  place more importance on the person’s interests than on those of 
science and society.
11.21  The research proposal must give enough information about what the 
team will do if a person who lacks capacity needs urgent treatment 
during research and it is not possible to speak to the person’s carer or 
someone else who acts or makes decisions on behalf of the person 
(see paragraphs 11.32–11.36).
Consulting carers
11.22  Once it has been established that a person lacks capacity to agree to 
participate, then before they are included in research the researcher 
must consult with specifi ed people in accordance with section 32 
of the Act to determine whether the person should be included in 
the research.
Who can researchers consult?
11.23  The researcher should as a matter of good practice take reasonable 
steps to identify someone to consult. That person (the consultee) must 
be involved in the person’s care, interested in their welfare and must 
be willing to help. They must not be a professional or paid care worker. 
They will probably be a family member, but could be another person.
11.24  The researcher must take into account previous wishes and feelings 
that the person might have expressed about who they would, or would 
not, like involved in future decisions.
11.25  A person is not prevented from being consulted if they are an attorney 
authorised under a registered Lasting Power of Attorney or are a 
deputy appointed by the Court of Protection. But that person must not 
be acting in a professional or paid capacity (for example, 
person’s solicitor).
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Mental Capacity Act Code of Practice
11.26  Where there is no-one who meets the conditions mentioned at 
paragraphs 11.23 and 11.25, the researcher must nominate a person to 
Chapter 11
be the consulted. In this situation, they must follow guidance from the 
Secretary of State for Health in England or the National Assembly for 
Wales (the guidance will be available from mid-2007). The person who 
How does 
is nominated must have no connection with the research project.
the Act affect 
research projects 
involving a 
11.27  The researcher must provide the consultee with information about the 
person who lacks 
research project and ask them:
capacity?
•  for advice about whether the person who lacks capacity should take 
part in the project, and
•  what they think the person’s feelings and wishes would be, if they 
had capacity to decide whether to take part.
11.28  Sometimes the consultee will say that the person would probably 
not take part in the project or that they would ask to be withdrawn. 
In this situation, the researcher must not include the person in the 
project, or they should withdraw them from it. But if the project has 
started, and the person is getting treatment as part of the research, 
the researcher may decide that the person should not be withdrawn if 
the researcher reasonably believes that this would cause a signifi cant 
risk to the person’s health. The researcher may decide that the person 
should continue with the research while the risk exists. But they 
should stop any parts of the study that are not related to the risk to 
the person’s health.
What other safeguards does the Act require?
11.29  Even when a consultee agrees that a person can take part in research, 
the researcher must still consider the person’s wishes and feelings.
11.30  Researchers must not do anything the person who lacks capacity 
objects to. They must not do anything to go against any advance 
decision to refuse treatment or other statement the person has 
previously made expressing preferences about their care or treatment. 
They must assume that the person’s interests in this matter are more 
important than those of science and society.
11.31  A researcher must withdraw someone from a project if:
•  they indicate in any way that they want to be withdrawn from the 
project (for example, if they become upset or distressed), or
•  any of the Act’s requirements are no longer met.
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Mental Capacity Act Code of Practice
What happens if urgent decisions are required during the 
research project?

11.32  Anyone responsible for caring for a person must give them urgent 
treatment if they need it. In some circumstances, it may not be possible 
to separate the research from the urgent treatment.
11.33  A research proposal should explain to the appropriate body how 
researchers will deal with urgent decisions which may occur during 
the project, when there may not be time to carry out the consultations 
required under the Act. For example, after a patient has arrived in 
intensive care, the doctor may want to chart the course of an injury by 
taking samples or measurements immediately and then taking further 
samples after some type of treatment to compare with the fi rst set.
11.34  Special rules apply where a person who lacks capacity is getting, or 
about to get, urgent treatment and researchers want to include them in 
a research project. If in these circumstances a researcher thinks that it 
is necessary to take urgent action for the purposes of the research, and 
they think it is not practical to consult someone about it, the researcher 
can take that action if:
•  they get agreement from a registered medical practitioner not 
involved with the research, or
•  they follow a procedure that the appropriate body agreed to at 
approval stage.
11.35  The medical practitioner may have a connection to the person who 
lacks capacity (for example, they might be their doctor). But they must 
not be involved in the research project in any way. This is to avoid 
confl icts of interest.
11.36  This exception to the duty to consult only applies:
•  for as long as the person needs urgent treatment, and
•  when the researcher needs to take action urgently for research 
to be valid.    
 
 It is likely to be limited to research into procedures or treatments used 
in emergencies. It does not apply where the researcher simply wants to 
act quickly.
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Mental Capacity Act Code of Practice
What happens for research involving human tissue?
Chapter 11
11.37  A person with capacity has to give their permission for someone to 
remove tissue from their body (for example, taking a biopsy (a sample) 
for diagnosis or removal of tissue in surgery). The Act allows the 
How does 
removal of tissue from the body of a person who lacks capacity, if it is 
the Act affect 
in their best interests (see chapter 5).
research projects 
involving a 
person who lacks 
11.38  People with capacity must also give permission for the storage or use 
capacity?
of tissue for certain purposes, set out in the Human Tissue Act 2004, 
(for example, transplants and research). But there are situations in 
which permission is not required by law:
•  research where the samples are anonymised and the research has 
ethical approval52
• clinical audit
•  education or training relating to human health
• performance assessment
•  public health monitoring, and
• quality assurance.
11.39  If an adult lacks capacity to consent, the Human Tissue Act 2004 says 
that tissue can be stored or used without seeking permission if the 
storage or use is:
•  to get information relevant to the health of another individual (for 
example, before conducting a transplant), as long as the researcher 
or healthcare professional storing or using the human tissue believes 
they are doing it in the best interests of the person who lacks 
capacity to consent
•  for a clinical trial approved and carried out under the Medicines for 
Human Use (Clinical Trials) Regulations 2004, or
•  for intrusive research:
  –  after the Mental Capacity Act comes into force
  –  that meets the Act’s requirements, and
  –  that has ethical approval.
52  Section 1(9) of the Human Tissue Act 2004
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Mental Capacity Act Code of Practice
11.40  Tissue samples that were obtained before 31 August 2006 are existing 
holdings under the Human Tissue Act. Researchers can work with 
these tissues without seeking permission. But they will still need to get 
ethical approval. Guidance is available in the Human Tissue Authority 
Code of Practice on consent.53
What should happen to research that started before the Act 
came into force?

What if a person has capacity when research starts but loses capacity?
11.41  Some people with capacity will agree to take part in research but 
may then lose capacity before the end of the project. In this situation, 
researchers will be able to continue research as long as they comply 
with the conditions set out in the Mental Capacity Act 2005 (Loss 
of Capacity During Research Project) (England) Regulations 2007 or 
equivalent Welsh regulations.
 
The regulations only apply to tissue and data collected before the loss 
of capacity from a person who gave consent before 31 March 2008 to 
join a project that starts before 1 October 2007.
11.42  The regulations do not cover research involving direct intervention (for 
example, taking of further blood pressure readings) or the taking of 
further tissue after loss of capacity. Such research must comply with 
sections 30 to 33 of the Act to be lawful.
11.43  Where the regulations do apply, research can only continue if the 
project already has procedures to deal with people who lose capacity 
during the project. An appropriate body must have approved the 
procedures. The researcher must follow the procedures that have 
been approved.
11.44  The researcher must also:
•  seek out the views of someone involved in the person’s care or 
interested in their welfare and if a carer can’t be found they must 
nominate a consultee (see paragraphs 11.22–11.28)
•  respect advance decisions and expressed preferences, wishes or 
objections that the person has made in the past, and
•  treat the person’s interests as more important than those of science 
and society.
53 www.hta.gov.uk
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Mental Capacity Act Code of Practice
 
The appropriate body must be satisfi ed that the research project has 
reasonable arrangements to meet these requirements.
Chapter 11
11.45  If at any time the researcher believes that procedures are no longer in 
place or the appropriate body no longer approves the research, they 
How does 
must stop research on the person immediately.
the Act affect 
research projects 
involving a 
11.46  Where regulations do apply, research does not have to:
person who lacks 
capacity?
•  be linked to an impairing condition of the person
•  have the potential to benefi t that person, or
•  aim to provide knowledge relevant to others with the same or a 
similar condition.
What happens to existing projects that a person never had capacity to 
agree to?

11.47  There are no regulations for projects that:
•  started before the Act comes into force, and
•  a person never had the capacity to agree to.
 
Projects that already have ethical approval will need to obtain approval 
from an appropriate body under sections 30 and 31 of the Mental 
Capacity Act and to comply with the requirements of sections 32 and 
33 of that Act by 1 October 2008. Research that does not have ethical 
approval must get approval from an appropriate body by 1 October 
2007 to continue lawfully. This is the case in England and it is expected 
that similar arrangements will apply in Wales.
215

12 How does the Act apply to children 
and young people?
This chapter looks at the few parts of the Act that may affect children under 
16 years of age. It also explains the position of young people aged 16 and 
17 years and the overlapping laws that affect them.
This chapter does not deal with research. Further guidance will be provided on 
how the Act applies in relation to research involving those under the age of 18.
Within this Code of Practice, ‘children’ refers to people aged below 16. ‘Young 
people’ refers to people aged 16–17. This differs from the Children Act 1989 
and the law more generally, where the term ‘child’ is used to refer to people 
aged under 18.
In this chapter, as throughout the Code, a person’s capacity (or lack of 
capacity) refers specifi cally to their capacity to make a particular decision 
at the time it needs to be made.
Quick summary
Children under 16
•  The Act does not generally apply to people under the age of 16.
•  There are two exceptions:
 – 
 
The Court of Protection can make decisions about a child’s property or 
fi nances (or appoint a deputy to make these decisions) if the child lacks 
capacity to make such decisions within section 2(1) of the Act and is 
likely to still lack capacity to make fi nancial decisions when they reach 
the age of 18 (section 18(3)).
 – 
 
Offences of ill treatment or wilful neglect of a person who lacks capacity 
within section 2(1) can also apply to victims younger than 16 (section 44).
Young people aged 16–17 years
•  Most of the Act applies to young people aged 16–17 years, who may lack 
capacity within section 2(1) to make specifi c decisions.
•  There are three exceptions:
 – 
 
Only people aged 18 and over can make a Lasting Power of Attorney 
(LPA).
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Mental Capacity Act Code of Practice
 – 
 
Only people aged 18 and over can make an advance decision to refuse 
medical treatment.
Chapter 12
 – 
 
The Court of Protection may only make a statutory will for a person aged 
18 and over.
How does the 
Act apply to 
Care or treatment for young people aged 16–17
children and 
young people?
•  People carrying out acts in connection with the care or treatment of a 
young person aged 16–17 who lacks capacity to consent within section 
2(1) will generally have protection from liability (section 5), as long as the 
person carrying out the act:
 – 
 
has taken reasonable steps to establish that the young person lacks 
capacity
 – 
 
reasonably believes that the young person lacks capacity and that the 
act is in the young person’s best interests, and
 – 
 
follows the Act’s principles.
•  When assessing the young person’s best interests (see chapter 5), the 
person providing care or treatment must consult those involved in the 
young person’s care and anyone interested in their welfare – if it is practical 
and appropriate to do so. This may include the young person’s parents. 
Care should be taken not to unlawfully breach the young person’s right to 
confi dentiality (see chapter 16).
•  Nothing in section 5 excludes a person’s civil liability for loss or damage, or 
his criminal liability, resulting from his negligence in carrying out the act.
Legal proceedings involving young people aged 16-17
•  Sometimes there will be disagreements about the care, treatment or welfare 
of a young person aged 16 or 17 who lacks capacity to make relevant 
decisions. Depending on the circumstances, the case may be heard in the 
family courts or the Court of Protection.
•  The Court of Protection may transfer a case to the family courts, and 
vice versa.
Does the Act apply to children?
12.1  Section 2(5) of the Act states that, with the exception of section 2(6), as 
explained below, no powers under the Act may be exercised in relation 
to a child under 16.
12.2   Care and treatment of children under the age of 16 is generally 
governed by common law principles. Further information is provide at 
www.dh.gov.uk/consent.
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Mental Capacity Act Code of Practice
Can the Act help with decisions about a child’s property or finances?
12.3  Section 2(6) makes an exception for some decisions about a child’s 
property and fi nancial affairs. The Court of Protection can make 
decisions about property and affairs of those under 16 in cases where 
the person is likely to still lack capacity to make fi nancial decisions 
after reaching the age of 18. The court’s ruling will still apply when the 
person reaches the age of 18, which means there will not be a need for 
further court proceedings once the person reaches the age of 18.
12.4  The Court of Protection can:
•  make an order (for example, concerning the investment of an award 
of compensation for the child), and/or
•  appoint a deputy to manage the child’s property and affairs and to 
make ongoing fi nancial decisions on the child’s behalf.
 
 In making a decision, the court must follow the Act’s principles and 
decide in the child’s best interests as set out in chapter 5 of the Code.
Scenario: Applying the Act to children
Tom was nine when a drunk driver knocked him off his bicycle. He 
suffered severe head injuries and permanent brain damage. He received 
a large amount of money in compensation. He is unlikely to recover 
enough to be able to make fi nancial decisions when he is 18. So the 
Court of Protection appoints Tom’s father as deputy to manage his 
fi nancial affairs in order to pay for the care Tom will need in the future.
What if somebody mistreats or neglects a child who lacks capacity?
12.5   Section 44 covers the offences of ill treatment or wilful neglect of a 
person who lacks capacity to make relevant decisions (see chapter 
14). This section also applies to children under 16 and young people 
aged 16 or 17. But it only applies if the child’s lack of capacity to make 
a decision for themselves is caused by an impairment or disturbance 
that affects how their mind or brain works (see chapter 4). If the lack of 
capacity is solely the result of the child’s youth or immaturity, then the 
ill treatment or wilful neglect would be dealt with under the separate 
offences of child cruelty or neglect.
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Mental Capacity Act Code of Practice
Does the Act apply to young people aged 16–17?
Chapter 12
12.6  Most of the Act applies to people aged 16 years and over. There is an 
overlap with the Children Act 1989. For the Act to apply to a young 
person, they must lack capacity to make a particular decision (in line 
How does the 
with the Act’s defi nition of lack of capacity described in chapter 4). 
Act apply to 
children and 
In such situations either this Act or the Children Act 1989 may apply, 
young people?
depending upon the particular circumstances.
 
However, there may also be situations where neither of these Acts 
provides an appropriate solution. In such cases, it may be necessary 
to look to the powers available under the Mental Health Act 1983 
or the High Court’s inherent powers to deal with cases involving 
young people.
12.7   There are currently no specifi c rules for deciding when to use either 
the Children Act 1989 or the Mental Capacity Act 2005 or when to 
apply to the High Court. But, the examples below show circumstances 
where this Act may be the most appropriate (see also paragraphs 
12.21–12.23 below).
•  In unusual circumstances it might be in a young person’s best 
interests for the Court of Protection to make an order and/or appoint 
a property and affairs deputy. For example, this might occur when 
a young person receives fi nancial compensation and the court 
appoints a parent or a solicitor as a property and affairs deputy. 
•  It may be appropriate for the Court of Protection to make a welfare 
decision concerning a young person who lacks capacity to decide 
for themselves (for example, about where the young person should 
live) if the court decides that the parents are not acting in the young 
person’s best interests.
•  It might be appropriate to refer a case to the Court of Protection 
where there is disagreement between a person interested in the care 
and welfare of a young person and the young person’s medical team 
about the young person’s best interests or capacity.
Do any parts of the Act not apply to young people aged 
16 or 17?

LPAs
12.8  Only people aged 18 or over can make a Lasting Power of Attorney 
(LPA) (section 9(2)(c)).
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Mental Capacity Act Code of Practice
Advance decisions to refuse treatment
12.9  Information on decisions to refuse treatment made in advance by 
young people under the age of 18 will be available at 
www.dh.gov.uk/consent.
Making a will
12.10  The law generally does not allow anyone below the age of 18 to make 
a will. So section 18(2) confi rms that the Court of Protection can only 
make a statutory will on behalf of those aged 18 and over.
What does the Act say about care or treatment of young 
people aged 16 or 17?

Background information concerning competent young people
12.11  The Family Law Reform Act 1969 presumes that young people have 
the legal capacity to agree to surgical, medical or dental treatment.54 
This also applies to any associated procedures (for example, 
investigations, anaesthesia or nursing care).
12.12  It does not apply to some rarer types of procedure (for example, organ 
donation or other procedures which are not therapeutic for the young 
person) or research. In those cases, anyone under 18 is presumed to 
lack legal capacity, subject to the test of ‘Gillick competence’ (testing 
whether they are mature and intelligent enough to understand a 
proposed treatment or procedure).55
12.13  Even where a young person is presumed to have legal capacity to 
consent to treatment, they may not necessarily be able to make the 
relevant decision. As with adults, decision-makers should assess the 
young person’s capacity to consent to the proposed care or treatment 
(see chapter 4). If a young person lacks capacity to consent within 
section 2(1) of the Act because of an impairment of, or a disturbance 
in the functioning of, the mind or brain then the Mental Capacity Act 
will apply in the same way as it does to those who are 18 and over. If 
however they are unable to make the decision for some other reason, 
for example because they are overwhelmed by the implications of 
the decision, the Act will not apply to them and the legality of any 
treatment should be assessed under common law principles.
54  Family Law Reform Act 1969, section 8(1)
55  In the case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 
the court found that a child below 16 years of age will be competent to consent to medical 
treatment if they have suffi cient intelligence and understanding to understand what is 
proposed. This test applies in relation to all people under 18 where there is no presumption 
of competence in relation to the procedure – for example where the procedure is not one 
referred to in section 8 of the Family Law Reform Act 1969, e.g. organ donation.
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12.14  If a young person has capacity to agree to treatment, their decision to 
consent must be respected. Diffi cult issues can arise if a young person 
Chapter 12
has legal and mental capacity and refuses consent – especially if a 
person with parental responsibility wishes to give consent on the young 
person’s behalf. The Family Division of the High Court can hear cases 
How does the 
where there is disagreement. The Court of Protection has no power to 
Act apply to 
children and 
settle a dispute about a young person who is said to have the mental 
young people?
capacity to make the specifi c decision.
12.15  It may be unclear whether a young person lacks capacity within section 
2(1) of the Act. In those circumstances, it would be prudent for the 
person providing care or treatment for the young person to seek a 
declaration from the court.
If the young person lacks capacity to make care or treatment decisions
12.16  Under the common law, a person with parental responsibility for 
a young person is generally able to consent to the young person 
receiving care or medical treatment where they lack capacity under 
section 2(1) of the Act. They should act in the young person’s best 
interests.
12.17  However if a young person lacks the mental capacity to make a 
specifi c care or treatment decision within section 2(1) of the Act, 
healthcare staff providing treatment, or a person providing care to the 
young person, can carry out treatment or care with protection from 
liability (section 5) whether or not a person with parental responsibility 
consents.56 They must follow the Act’s principles and make sure that 
the actions they carry out are in the young person’s best interests. They 
must make every effort to work out and consider the young person’s 
wishes, feelings, beliefs and values – both past and present – and 
consider all other factors in the best interests checklist (see chapter 5).
12.18  When assessing a young person’s best interests, healthcare staff must 
take into account the views of anyone involved in caring for the young 
person and anyone interested in their welfare, where it is practical and 
appropriate to do so. This may include the young person’s parents 
and others with parental responsibility for the young person. Care 
should be taken not to unlawfully breach the young person’s right to 
confi dentiality (see chapter 16).
56  Nothing in section 5 excludes a person’s civil liability for loss or damage, or his criminal 
liability, resulting from his negligence in doing the Act.
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Mental Capacity Act Code of Practice
12.19  If a young person has said they do not want their parents to be 
consulted, it may not be appropriate to involve them (for example, 
where there have been allegations of abuse).
12.20  If there is a disagreement about whether the proposed care or 
treatment is in the best interests of a young person, or there is 
disagreement about whether the young person lacks capacity and 
there is no other way of resolving the matter, it would be prudent for 
those in disagreement to seek a declaration or other order from the 
appropriate court (see paragraphs 12.23–12.25 below).
Scenario: Working out a young person’s best interests
Mary is 16 and has Down’s syndrome. Her mother wants Mary to have 
dental treatment that will improve her appearance but is not otherwise 
necessary.
To be protected under section 5 of the Act, the dentist must consider 
whether Mary has capacity to agree to the treatment and what would be 
in her best interests. He decides that she is unable to understand what is 
involved or the possible consequences of the proposed treatment and so 
lacks capacity to make the decision.
But Mary seems to want the treatment, so he takes her views into 
account in deciding whether the treatment is in her best interests. He 
also consults with both her parents and with her teacher and GP to see if 
there are other relevant factors to take into account.
He decides that the treatment is likely to improve Mary’s confi dence and 
self-esteem and is in her best interests.
12.21  There may be particular diffi culties where young people with mental 
health problems require in-patient psychiatric treatment, and are 
treated informally rather than detained under the Mental Health Act 
1983. The Mental Capacity Act and its principles apply to decisions 
related to the care and treatment of young people who lack mental 
capacity to consent, including treatment for mental disorder. As with 
any other form of treatment, somebody assessing a young person’s 
best interests should consult anyone involved in caring for the young 
person or anyone interested in their welfare, as far as is practical and 
appropriate. This may include the young person’s parents or those with 
parental responsibility for the young person.
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But the Act does not allow any actions that result in a young person 
being deprived of their liberty (see chapter 6). In such circumstances, 
Chapter 12
detention under the Mental Health Act 1983 and the safeguards 
provided under that Act might be appropriate (see also chapter 13).
How does the 
12.22  People may disagree about a young person’s capacity to make the 
Act apply to 
children and 
specifi c decision or about their best interests, or it may not be clear 
young people?
whether they lack capacity within section 2(1) or for some other reason. 
In this situation, legal proceedings may be necessary if there is no 
other way of settling the disagreement (see chapters 8 and 15). If those 
involved in caring for the young person or who are interested in the 
young person’s welfare do not agree with the proposed treatment, it 
may be necessary for an interested party to make an application to the 
appropriate court.
What powers do the courts have in cases involving 
young people?

12.23  A case involving a young person who lacks mental capacity to make 
a specifi c decision could be heard in the family courts (probably in the 
Family Division of the High Court) or in the Court of Protection.
12.24  If a case might require an ongoing order (because the young person 
is likely to still lack capacity when they are 18), it may be more 
appropriate for the Court of Protection to hear the case. For one-off 
cases not involving property or fi nances, the Family Division may be 
more appropriate.
12.25  So that the appropriate court hears a case, the Court of Protection can 
transfer cases to the family courts, and vice versa (section 21).
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Mental Capacity Act Code of Practice
Scenario: Hearing cases in the appropriate court
Shola is 17. She has serious learning disabilities and lacks the capacity 
to decide where she should live. Her parents are involved in a bitter 
divorce. They cannot agree on several issues concerning Shola’s care 
– including where she should live. Her mother wants to continue to 
look after Shola at home. But her father wants Shola to move into a 
care home.
In this case, it may be more appropriate for the Court of Protection 
to deal with the case. This is because an order made in the Court of 
Protection could continue into Shola’s adulthood. However an order 
made by the family court under the Children Act 1989 would end on 
Shola’s eighteenth birthday.
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13 What is the relationship between the 
Mental Capacity Act and the Mental 
Health Act 1983?
This chapter explains the relationship between the Mental Capacity Act 2005 
(MCA) and the Mental Health Act 1983 (MHA). It:
•  sets out when it may be appropriate to detain someone under the MHA 
rather than to rely on the MCA
•  describes how the MCA affects people lacking capacity who are also 
subject to the MHA
•  explains when doctors cannot give certain treatments for a mental disorder 
(in particular, psychosurgery) to someone who lacks capacity to consent to 
it, and
•  sets out changes that the Government is planning to make to both Acts.
It does not provide a full description of the MHA. The MHA has its own 
Memorandum to explain the Act and its own Code of Practice to guide people 
about how to use it.57
In this chapter, as throughout the Code, a person’s capacity (or lack of 
capacity) refers specifi cally to their capacity to make a particular decision 
at the time it needs to be made.
Quick summary
•  Professionals may need to think about using the MHA to detain and treat 
somebody who lacks capacity to consent to treatment (rather than use the 
MCA), if:
 – 
 
it is not possible to give the person the care or treatment they need 
without doing something that might deprive them of their liberty
 – 
 
the person needs treatment that cannot be given under the MCA (for 
example, because the person has made a valid and applicable advance 
decision to refuse an essential part of treatment)
 – 
 
the person may need to be restrained in a way that is not allowed under 
the MCA
57  Department of Health & Welsh Offi ce, Mental Health Act 1983 Code of Practice (TSO, 
1999), www.dh.gov.uk/assetRoot/04/07/49/61/04074961.pdf
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Mental Capacity Act Code of Practice
 – 
 
it is not possible to assess or treat the person safely or effectively without 
treatment being compulsory (perhaps because the person is expected to 
regain capacity to consent, but might then refuse to give consent)
 – 
 
the person lacks capacity to decide on some elements of the treatment 
but has capacity to refuse a vital part of it – and they have done so, or
 – 
 
there is some other reason why the person might not get treatment, and 
they or somebody else might suffer harm as a result.
•  Before making an application under the MHA, decision-makers should 
consider whether they could achieve their aims safely and effectively by 
using the MCA instead.
•  Compulsory treatment under the MHA is not an option if:
 – 
 
the patient’s mental disorder does not justify detention in hospital, or
 – 
 
the patient needs treatment only for a physical illness or disability.
•  The MCA applies to people subject to the MHA in the same way as it 
applies to anyone else, with four exceptions:
 – 
 
if someone is detained under the MHA, decision-makers cannot normally 
rely on the MCA to give treatment for mental disorder or make decisions 
about that treatment on that person’s behalf
 – 
 
if somebody can be treated for their mental disorder without their 
consent because they are detained under the MHA, healthcare staff can 
treat them even if it goes against an advance decision to refuse that 
treatment
 – 
 
if a person is subject to guardianship, the guardian has the exclusive 
right to take certain decisions, including where the person is to live, and
 – 
 
Independent Mental Capacity Advocates do not have to be involved in 
decisions about serious medical treatment or accommodation, if those 
decisions are made under the MHA.
•  Healthcare staff cannot give psychosurgery (i.e. neurosurgery for mental 
disorder) to a person who lacks capacity to agree to it. This applies whether 
or not the person is otherwise subject to the MHA.
Who does the MHA apply to?
13.1  The MHA provides ways of assessing, treating and caring for people 
who have a serious mental disorder that puts them or other people at 
risk. It sets out when:
•  people with mental disorders can be detained in hospital for 
assessment or treatment
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Mental Capacity Act Code of Practice
•  people who are detained can be given treatment for their mental 
disorder without their consent (it also sets out the safeguards people 
Chapter 13
must get in this situation), and
•  people with mental disorders can be made subject to guardianship 
What is the 
or after-care under supervision to protect them or other people.
relationship 
between the 
13.2  Most of the MHA does not distinguish between people who have 
Mental Capacity 
Act and the 
the capacity to make decisions and those who do not. Many people 
Mental Health Act 
covered by the MHA have the capacity to make decisions for 
1983? 
themselves. Most people who lack capacity to make decisions about 
their treatment will never be affected by the MHA, even if they need 
treatment for a mental disorder.
13.3  But there are cases where decision-makers will need to decide whether 
to use the MHA or MCA, or both, to meet the needs of people with 
mental health problems who lack capacity to make decisions about 
their own treatment.
What are the MCA’s limits?
13.4  Section 5 of the MCA provides legal protection for people who care for 
or treat someone who lacks capacity (see chapter 6). But they must 
follow the Act’s principles and may only take action that is in a person’s 
best interests (see chapter 5). This applies to care or treatment for 
physical and mental conditions. So it can apply to treatment for people 
with mental disorders, however serious those disorders are.
13.5  But section 5 does have its limits. For example, somebody using 
restraint only has protection if the restraint is:
•  necessary to protect the person who lacks capacity from harm, and
•  in proportion to the likelihood and seriousness of that harm.
13.6  There is no protection under section 5 for actions that deprive a person 
of their liberty (see chapter 6 for guidance). Similarly, the MCA does not 
allow giving treatment that goes against a valid and applicable advance 
decision to refuse treatment (see chapter 9).
13.7  None of these restrictions apply to treatment for mental disorder given 
under the MHA – but other restrictions do.
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Mental Capacity Act Code of Practice
When can a person be detained under the MHA?
13.8  A person may be taken into hospital and detained for assessment 
under section 2 of the MHA for up to 28 days if:
•  they have a mental disorder that is serious enough for them to be 
detained in a hospital for assessment (or for assessment followed by 
treatment) for at least a limited period, and
•  they need to be detained to protect their health or safety, or to 
protect others.
13.9  A patient may be admitted to hospital and detained for treatment under 
section 3 of the MHA if:
•  they have a mental illness, severe mental impairment, psychopathic 
disorder or mental impairment (the MHA sets out defi nitions for 
these last three terms)
•  their mental disorder is serious enough to need treatment in hospital
•  treatment is needed for the person’s health or safety, or for the 
protection of other people – and it cannot be provided without 
detention under this section, and
•  (if the person has a mental impairment or psychopathic disorder) 
treatment is likely to improve their condition or stop it getting worse.
13.10  Decision-makers should consider using the MHA if, in their professional 
judgment, they are not sure it will be possible, or suffi cient, to rely on 
the MCA. They do not have to ask the Court of Protection to rule that 
the MCA does not apply before using the MHA.
13.11  If a clinician believes that they can safely assess or treat a person 
under the MCA, they do not need to consider using the MHA. In this 
situation, it would be diffi cult to meet the requirements of the MHA 
anyway.
13.12  It might be necessary to consider using the MHA rather than the 
MCA if:
•  it is not possible to give the person the care or treatment they need 
without carrying out an action that might deprive them of their liberty
•  the person needs treatment that cannot be given under the MCA 
(for example, because the person has made a valid and applicable 
advance decision to refuse all or part of that treatment)
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•  the person may need to be restrained in a way that is not allowed 
under the MCA
Chapter 13
•  it is not possible to assess or treat the person safely or effectively 
without treatment being compulsory (perhaps because the person 
What is the 
is expected to regain capacity to consent, but might then refuse to 
relationship 
give consent)
between the 
•  the person lacks capacity to decide on some elements of the 
Mental Capacity 
Act and the 
treatment but has capacity to refuse a vital part of it – and they have 
Mental Health Act 
done so, or
1983? 
•  there is some other reason why the person might not get the 
treatment they need, and they or somebody else might suffer harm 
as a result.
13.13  But it is important to remember that a person cannot be treated under 
the MHA unless they meet the relevant criteria for being detained. 
Unless they are sent to hospital under Part 3 of the MHA in connection 
with a criminal offence, people can only be detained where:
•  the conditions summarised in paragraph 13.8 or 13.9 are met
•  the relevant people agree that an application is necessary (normally 
two doctors and an approved social worker), and
•  (in the case of section 3) the patient’s nearest relative has not 
objected to the application.
 
‘Nearest relative’ is defi ned in section 26 of the MHA. It is usually, but 
not always, a family member.
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Scenario: Using the MHA
Mr Oliver has a learning disability. For the last four years, he has had 
depression from time to time, and has twice had treatment for it at a 
psychiatric hospital. He is now seriously depressed and his care workers 
are worried about him.
Mr Oliver’s consultant has given him medication and is considering 
electro-convulsive therapy. The consultant thinks this care plan will only 
work if Mr Oliver is detained in hospital. This will allow close observation 
and Mr Oliver will be stopped if he tries to leave. The consultant thinks 
an application should be made under section 3 of the MHA.
The consultant also speaks to Mr Oliver’s nearest relative, his mother. 
She asks why Mr Oliver needs to be detained when he has not needed 
to be in the past. But after she hears the consultant’s reasons, she does 
not object to the application. An approved social worker makes the 
application and obtains a second medical recommendation. Mr Oliver 
is then detained and taken to hospital for his treatment for depression 
to begin.
13.14  Compulsory treatment under the MHA is not an option if:
•  the patient’s mental disorder does not justify detention in hospital, or
•  the patient needs treatment only for a physical illness or disability.
13.15  There will be some cases where a person who lacks capacity cannot 
be treated either under the MHA or the MCA – even if the treatment is 
for mental disorder.
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Mental Capacity Act Code of Practice
Scenario: Deciding whether to use the MHA or MCA
Chapter 13
Mrs Carter is in her 80s and has dementia. Somebody fi nds her 
wandering in the street, very confused and angry. A neighbour takes 
What is the 
her home and calls her doctor. At home, it looks like she has been 
relationship 
deliberately smashing things. There are cuts on her hands and arms, 
between the 
Mental Capacity 
but she won’t let the doctor touch them, and she hasn’t been taking her 
Act and the 
medication.
Mental Health Act 
1983? 
Her doctor wants to admit her to hospital for assessment. Mrs Carter 
gets angry and says that they’ll never keep her in hospital. So the doctor 
thinks that it might be necessary to use the MHA. He arranges for an 
approved social worker to visit. The social worker discovers that Mrs 
Carter was expecting her son this morning, but he has not turned up. 
They fi nd out that he has been delayed, but could not call because Mrs 
Carter’s telephone has become unplugged.
When she is told that her son is on his way, Mrs Carter brightens up. 
She lets the doctor treat her cuts – which the doctor thinks it is in her 
best interests to do as soon as possible. When Mrs Carter’s son arrives, 
the social worker explains the doctor is very worried, especially that 
Mrs Carter is not taking her medication. The son explains that he will 
help his mother take it in future. It is agreed that the MCA will allow him 
to do that. The social worker arranges to return a week later and calls 
the doctor to say that she thinks Mrs Carter can get the care she needs 
without being detained under the MHA. The doctor agrees.
How does the MCA apply to a patient subject to guardianship 
under the MHA?

13.16  Guardianship gives someone (usually a local authority social services 
department) the exclusive right to decide where a person should live 
– but in doing this they cannot deprive the person of their liberty. The 
guardian can also require the person to attend for treatment, work, 
training or education at specifi c times and places, and they can 
demand that a doctor, approved social worker or another relevant 
person have access to the person wherever they live. Guardianship can 
apply whether or not the person has the capacity to make decisions 
about care and treatment. It does not give anyone the right to treat 
the person without their permission or to consent to treatment on their 
behalf.
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13.17  An application can be made for a person who has a mental disorder to 
be received into guardianship under section 7 of the MHA when:
•  the situation meets the conditions summarised in paragraph 13.18
•  the relevant people agree an application for guardianship should be 
made (normally two doctors and an approved social worker), and
•  the person’s nearest relative does not object.
13.18  An application can be made in relation to any person who is 16 years 
or over if:
•  they have a mental illness, severe mental impairment, psychopathic 
disorder or mental impairment that is serious enough to justify 
guardianship (see paragraph 13.20 below), and
•  guardianship is necessary in the interests of the welfare of the 
patient or to protect other people.
13.19  Applicants (usually approved social workers) and doctors supporting 
the application will need to determine whether they could achieve their 
aims without guardianship. For patients who lack capacity, the obvious 
alternative will be action under the MCA.
13.20  But the fact that the person lacks capacity to make relevant decision 
is not the only factor that applicants need to consider. They need to 
consider all the circumstances of the case. They may conclude that 
guardianship is the best option for a person with a mental disorder who 
lacks capacity to make those decisions if, for example:
•  they think it is important that one person or authority should be 
in charge of making decisions about where the person should 
live (for example, where there have been long-running or diffi cult 
disagreements about where the person should live)
•  they think the person will probably respond well to the authority 
and attention of a guardian, and so be more prepared to accept 
treatment for the mental disorder (whether they are able to consent 
to it or it is being provided for them under the MCA), or
•  they need authority to return the person to the place they are to live 
(for example, a care home) if they were to go absent.
 
 Decision-makers must never consider guardianship as a way to avoid 
applying the MCA.
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Mental Capacity Act Code of Practice
13.21  A guardian has the exclusive right to decide where a person lives, 
so nobody else can use the MCA to arrange for the person to live 
Chapter 13
elsewhere. Somebody who knowingly helps a person leave the place 
a guardian requires them to stay may be committing a criminal offence 
under the MHA. A guardian also has the exclusive power to require 
What is the 
the person to attend set times and places for treatment, occupation, 
relationship 
between the 
education or training. This does not stop other people using the MCA 
Mental Capacity 
to make similar arrangements or to treat the person in their best 
Act and the 
interests. But people cannot use the MCA in any way that confl icts 
Mental Health Act 
with decisions which a guardian has a legal right to make under the 
1983? 
MHA. See paragraph 13.16 above for general information about a 
guardian’s powers.
How does the MCA apply to a patient subject to after-care 
under supervision under the MHA?

13.22  When people are discharged from detention for medical treatment 
under the MHA, their responsible medical offi cer may decide to place 
them on after-care under supervision. The responsible medical offi cer 
is usually the person’s consultant psychiatrist. Another doctor and an 
approved social worker must support their application.
13.23  After-care under supervision means:
•  the person can be required to live at a specifi ed place (where they 
can be taken to and returned, if necessary)
•  the person can be required to attend for treatment, occupation, 
education or training at a specifi c time and place (where they can be 
taken, if necessary), and
•  their supervisor, any doctor or approved social worker or any other 
relevant person must be given access to them wherever they live.
13.24  Responsible medical offi cers can apply for after-care under supervision 
under section 25A of the MHA if:
•  the person is 16 or older and is liable to be detained in a hospital for 
treatment under section 3 (and certain other sections) of the MHA
•  the person has a mental illness, severe mental impairment, 
psychopathic disorder or mental impairment
•  without after-care under supervision the person’s health or safety 
would be at risk of serious harm, they would be at risk of serious 
exploitation, or other people’s safety would be at risk of serious 
harm, and
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Mental Capacity Act Code of Practice
•  after-care under supervision is likely to help make sure the person 
gets the after-care services they need.
 
‘Liable to be detained’ means that a hospital is allowed to detain 
them. Patients who are liable to be detained are not always actually 
in hospital, because they may have been given permission to leave 
hospital for a time.
13.25  After-care under supervision can be used whether or not the person 
lacks capacity to make relevant decisions. But if a person lacks 
capacity, decision-makers will need to decide whether action under the 
MCA could achieve their aims before making an application. The kinds 
of cases in which after-care under supervision might be considered for 
patients who lack capacity to take decisions about their own care and 
treatment are similar to those for guardianship.
How does the Mental Capacity Act affect people covered by 
the Mental Health Act?

13.26  There is no reason to assume a person lacks capacity to make their 
own decisions just because they are subject (under the MHA) to:
• detention
• guardianship, or
•  after-care under supervision.
13.27  People who lack capacity to make specifi c decisions are still protected 
by the MCA even if they are subject to the MHA (this includes people 
who are subject to the MHA as a result of court proceedings). But there 
are four important exceptions:
•  if someone is liable to be detained under the MHA, decision-makers 
cannot normally rely on the MCA to give mental health treatment or 
make decisions about that treatment on someone’s behalf
•  if somebody can be given mental health treatment without their 
consent because they are liable to be detained under the MHA, 
they can also be given mental health treatment that goes against an 
advance decision to refuse treatment
•  if a person is subject to guardianship, the guardian has the exclusive 
right to take certain decisions, including where the person is to live, 
and
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•  Independent Mental Capacity Advocates do not have to be involved 
in decisions about serious medical treatment or accommodation, if 
Chapter 13
those decisions are made under the MHA.
What are the implications for people who need treatment for a 
What is the 
relationship 
mental disorder?
between the 
Mental Capacity 
13.28  Subject to certain conditions, Part 4 of the MHA allows doctors to give 
Act and the 
patients who are liable to be detained treatment for mental disorders 
Mental Health Act 
1983? 
without their consent – whether or not they have the capacity to give 
that consent. Paragraph 13.31 below lists a few important exceptions.
13.29  Where Part 4 of the MHA applies, the MCA cannot be used to give 
medical treatment for a mental disorder to patients who lack capacity 
to consent. Nor can anyone else, like an attorney or a deputy, use the 
MCA to give consent for that treatment. This is because Part 4 of the 
MHA already allows clinicians, if they comply with the relevant rules, 
to give patients medical treatment for mental disorder even though 
they lack the capacity to consent. In this context, medical treatment 
includes nursing and care, habilitation and rehabilitation under medical 
supervision.
13.30  But clinicians treating people for mental disorder under the MHA 
cannot simply ignore a person’s capacity to consent to treatment. As a 
matter of good practice (and in some cases in order to comply with the 
MHA) they will always need to assess and record:
•  whether patients have capacity to consent to treatment, and
•  if so, whether they have consented to or refused that treatment.
 
For more information, see the MHA Code of Practice.
13.31  Part 4 of the MHA does not apply to patients:
•  admitted in an emergency under section 4(4)(a) of the MHA, 
following a single medical recommendation and awaiting a second 
recommendation
•  temporarily detained (held in hospital) under section 5 of the MHA 
while awaiting an application for detention under section 2 or 
section 3
•  remanded by a court to hospital for a report on their medical 
condition under section 35 of the MHA
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Mental Capacity Act Code of Practice
•  detained under section 37(4), 135 or 136 of the MHA in a place of 
safety, or
•  who have been conditionally discharged by the Mental Health 
Review Tribunal (and not recalled to hospital).
13.32  Since the MHA does not allow treatment for these patients without 
their consent, the MCA applies in the normal way, even if the treatment 
is for mental disorder.
13.33  Even when the MHA allows patients to be treated for mental disorders, 
the MCA applies in the normal way to treatment for physical disorders. 
But sometimes healthcare staff may decide to focus fi rst on treating 
a detained patient’s mental disorder in the hope that they will get 
back the capacity to make a decision about treatment for the physical 
disorder.
13.34  Where people are subject to guardianship or after-care under 
supervision under the MHA, the MCA applies as normal to all 
treatment. Guardianship and after-care under supervision do not give 
people the right to treat patients without consent.
Scenario: Using the MCA to treat a patient who is detained under 
the MHA

Mr Peters is detained in hospital under section 3 of the MHA and is 
receiving treatment under Part 4 of the MHA. Mr Peters has paranoid 
schizophrenia, delusions, hallucinations and thought disorder. He refuses 
all medical treatment. Mr Peters has recently developed blood in his 
urine and staff persuaded him to have an ultrasound scan. The scan 
revealed suspected renal carcinoma.
His consultant believes that he needs a CT scan and treatment for 
the carcinoma. But Mr Peters refuses a general anaesthetic and other 
medical procedures. The consultant assesses Mr Peters as lacking 
capacity to consent to treatment under the MCA’s test of capacity. The 
MHA is not relevant here, because the CT scan is not part of Mr Peters’ 
treatment for mental disorder.
Under section 5 of the MCA, doctors can provide treatment without 
consent. But they must follow the principles of the Act and believe that 
treatment is in Mr Peters’ best interests.
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How does the Mental Health Act affect advance decisions to 
refuse treatment?

Chapter 13
13.35  The MHA does not affect a person’s advance decision to refuse 
treatment, unless Part 4 of the MHA means the person can be treated 
What is the 
relationship 
for mental disorder without their consent. In this situation healthcare 
between the 
staff can treat patients for their mental disorder, even if they have made 
Mental Capacity 
an advance decision to refuse such treatment.
Act and the 
Mental Health Act 
1983? 
13.36  But even then healthcare staff must treat a valid and applicable 
advance decision as they would a decision made by a person with 
capacity at the time they are asked to consent to treatment. For 
example, they should consider whether they could use a different type 
of treatment which the patient has not refused in advance. If healthcare 
staff do not follow an advance decision, they should record in the 
patient’s notes why they have chosen not to follow it.
13.37  Even if a patient is being treated without their consent under Part 4 of 
the MHA, an advance decision to refuse other forms of treatment is 
still valid. Being subject to guardianship or after-care under supervision 
does not affect an advance decision in any way. See chapter 9 for 
further guidance on advance decisions to refuse treatment.
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Scenario: Deciding on whether to follow an advance decision to 
refuse treatment

Miss Khan gets depression from time to time and has old physical 
injuries that cause her pain. She does not like the side effects of 
medication, and manages her health through diet and exercise. She 
knows that healthcare staff might doubt her decision-making capacity 
when she is depressed. So she makes an advance decision to refuse all 
medication for her physical pain and depression.
A year later, she gets major depression and is detained under the MHA. 
Her GP (family doctor) tells her responsible medical offi cer (RMO) at 
the hospital about her advance decision. But Miss Khan’s condition 
gets so bad that she will not discuss treatment. So the RMO decides to 
prescribe medication for her depression, despite her advance decision. 
This is possible because Miss Khan is detained under the MHA.
The RMO also believes that Miss Khan now lacks capacity to consent 
to medication for her physical pain. He assesses the validity of the 
advance decision to refuse medication for the physical pain. Her GP 
says that Miss Khan seemed perfectly well when she made the decision 
and seemed to understand what it meant. In the GP’s view, Miss Khan 
had the capacity to make the advance decision. The RMO decides that 
the advance decision is valid and applicable, and does not prescribe 
medication for Miss Khan’s pain – even though he thinks it would be in 
her best interests. When Miss Khan’s condition improves, the consultant 
will be able to discuss whether she would like to change her mind about 
treatment for her physical pain.
Does the MHA affect the duties of attorneys and deputies?
13.38  In general, the MHA does not affect the powers of attorneys and 
deputies. But there are two exceptions:
•  they will not be able to give consent on a patient’s behalf for 
treatment under Part 4 of the MHA, where the patient is liable to be 
detained under the MHA (see 13.28–13.34 above), and
•  they will not be able to take decisions:
  –  about where a person subject to guardianship should live, or
 – 
that 
confl ict with decisions that a guardian has a legal right to make.
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13.39  Being subject to the MHA does not stop patients creating new Lasting 
Powers of Attorney (if they have the capacity to do so). Nor does it 
Chapter 13
stop the Court of Protection from appointing a deputy for them.
13.40  In certain cases, people subject to the MHA may be required to meet 
What is the 
specifi c conditions relating to:
relationship 
between the 
Mental Capacity 
•  leave of absence from hospital
Act and the 
•  after-care under supervision, or
Mental Health Act 
1983? 
• conditional discharge.
 
Conditions vary from case to case, but could include a requirement to:
•  live in a particular place
•  maintain contact with health services, or
•  avoid a particular area.
13.41  If an attorney or deputy takes a decision that goes against one of 
these conditions, the patient will be taken to have gone against 
the condition. The MHA sets out the actions that could be taken in 
such circumstances. In the case of leave of absence or conditional 
discharge, this might involve the patient being recalled to hospital.
13.42  Attorneys and deputies are able to exercise patients’ rights under the 
MHA on their behalf, if they have the relevant authority. In particular, 
some personal welfare attorneys and deputies may be able to apply to 
the Mental Health Review Tribunal (MHRT) for the patient’s discharge 
from detention, guardianship or after-care under supervision.
13.43  The MHA also gives various rights to a patient’s nearest relative. These 
include the right to:
•  insist that a local authority social services department instructs an 
approved social worker to consider whether the patient should be 
made subject to the MHA
•  apply for the patient to be admitted to hospital or guardianship
•  object to an application for admission for treatment
•  order the patient’s discharge from hospital (subject to certain 
conditions) and
•  order the patient’s discharge from guardianship.
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Mental Capacity Act Code of Practice
13.44  Attorneys and deputies may not exercise these rights, unless they are 
themselves the nearest relative. If the nearest relative and an attorney 
or deputy disagree, it may be helpful for them to discuss the issue, 
perhaps with the assistance of the patient’s clinicians or social worker. 
But ultimately they have different roles and both must act as they think 
best. An attorney or deputy must act in the patient’s best interests.
13.45  It is good practice for clinicians and others involved in the assessment 
or treatment of patients under the MHA to try to fi nd out if the person 
has an attorney or deputy. But this may not always be possible. So 
attorneys and deputies should contact either:
•  the healthcare professional responsible for the patient’s treatment 
(generally known as the patient’s RMO)
•  the managers of the hospital where the patient is detained
•  the person’s guardian (normally the local authority social services 
department), or
•  the person’s supervisor (if the patient is subject to after-care under 
supervision).
 
Hospitals that treat detained patients normally have a Mental Health 
Act Administrator’s offi ce, which may be a useful fi rst point of contact.
Does the MHA affect when Independent Mental Capacity 
Advocates must be instructed?

13.46  As explained in chapter 10, there is no duty to instruct an Independent 
Mental Capacity Advocate (IMCA) for decisions about serious medical 
treatment which is to be given under Part 4 of the MHA. Nor is there a 
duty to do so in respect of a move into accommodation, or a change 
of accommodation, if the person in question is to be required to live in 
it because of an obligation under the MHA. That obligation might be a 
condition of leave of absence or conditional discharge from hospital or 
a requirement imposed by a guardian or a supervisor.
13.47  However, the rules for instructing an IMCA for patients subject to the 
MHA who might undergo serious medical treatment not related to their 
mental disorder are the same as for any other patient.
13.48  The duty to instruct an IMCA would also apply as normal if 
accommodation is being planned as part of the after-care under 
section 117 of the MHA following the person’s discharge from 
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Mental Capacity Act Code of Practice
detention (and the person is not going to be required to live in it as a 
condition of after-care under supervision). This is because the person 
Chapter 13
does not have to accept that accommodation.
What is the effect of section 57 of the Mental Health Act on 
What is the 
relationship 
the MCA?
between the 
Mental Capacity 
13.49  Section 57 of the MHA states that psychosurgery (neurosurgery for 
Act and the 
mental disorder) requires:
Mental Health Act 
1983? 
•  the consent of the patient, and
•  the approval of an independent doctor and two other people 
appointed by the Mental Health Act Commission.
 
Psychosurgery is any surgical operation that destroys brain tissue or 
the function of brain tissue.
13.50  The same rules apply to other treatments specifi ed in regulations under 
section 57. Currently, the only treatment included in regulations is the 
surgical implantation of hormones to reduce a man’s sex drive.
13.51  The combined effect of section 57 of the MHA and section 28 of the 
MCA is, effectively, that a person who lacks the capacity to consent 
to one of these treatments for mental disorder may never be given 
it. Healthcare staff cannot use the MCA as an alternative way of 
giving these kinds of treatment. Nor can an attorney or deputy give 
permission for them on a person’s behalf.
What changes does the Government plan to make to the MHA 
and the MCA?

13.52  The Government has introduced a Mental Health Bill into Parliament 
in order to modernise the MHA. Among the changes it proposes to 
make are:
•  some amendments to the criteria for detention, including a new 
requirement that appropriate medical treatment be available for 
patients before they can be detained for treatment
•  the introduction of supervised treatment in the community for 
suitable patients following a period of detention and treatment in 
hospital. This will help make sure that patients get the treatment they 
need and help stop them relapsing and returning to hospital
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Mental Capacity Act Code of Practice
•  the replacement of the approved social worker with the approved 
mental health professional. This will open up the possibility of 
approved mental healthcare professionals being drawn from other 
disciplines as well as social work. Other changes will open up the 
possibility of clinicians who are not doctors being approved to 
take on the role of the responsible medical offi cer. This role will be 
renamed the responsible clinician.
•  provisions to make it possible for patients to apply to the county 
court for an unsuitable nearest relative to be replaced, and
•  the abolition of after-care under supervision.
13.53  The Bill will also amend the MCA to introduce new procedures and 
provisions to make relevant decisions but who need to be deprived 
of their liberty, in their best interests, otherwise than under the Mental 
Health Act 1983 (the so-called ‘Bournewood provisions’).58
13.54  This chapter, as well as chapter 6, will be fully revised in due course 
to refl ect those changes. Information about the Government’s current 
proposals in respect of the Bournewood safeguards is available 
on the Department of Health website. This information includes 
draft illustrative Code of Practice guidance about the proposed 
safeguards.59
13.55  In the meantime, people taking decisions under both the MCA and the 
MHA must base those decisions on the Acts as they stand now.
58  This refers to the European Court of Human Rights judgement (5 October 2004) in the case 
of HL v The United Kingdom (Application no, 45508/99). 
59 See www.dh.gov.uk/PublicationsAndStatistics/Publications/
PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_
ID=4141656&chk=jlw07L
242

14 What means of protection exist for 
people who lack capacity to make 
decisions for themselves?
This chapter describes the different agencies that exist to help make sure 
that adults who lack capacity to make decisions for themselves are protected 
from abuse. It also explains the services those agencies provide and how 
they supervise people who provide care for or make decisions on behalf of 
people who lack capacity. Finally, it explains what somebody should do if they 
suspect that somebody is abusing a vulnerable adult who lacks capacity.
In this chapter, as throughout the Code, a person’s capacity (or lack of 
capacity) refers specifi cally to their capacity to make a particular decision 
at the time it needs to be made.
Quick summary
•  Always report suspicions of abuse of a person who lacks capacity to the 
relevant agency.
Concerns about an appointee
•  When someone is concerned about the collection or use of social security 
benefi ts by an appointee on behalf a person who lacks capacity, they 
should contact the local Jobcentre Plus. If the appointee is for someone 
who is over the age of 60, contact The Pension Service.
Concerns about an attorney or deputy
•  If someone is concerned about the actions of an attorney or deputy, they 
should contact the Offi ce of the Public Guardian.
Concerns about a possible criminal offence
•  If there is a good reason to suspect that someone has committed a crime 
against a vulnerable person, such as theft or physical or sexual assault, 
contact the police.
•  In addition, social services should also be contacted, so that they can 
support the vulnerable person during the investigation.
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Concerns about possible ill-treatment or wilful neglect
•  The Act introduces new criminal offences of ill treatment or wilful neglect of 
a person who lacks capacity to make relevant decisions (section 44).
•  If someone is not being looked after properly, contact social services.
•  In serious cases, contact the police.
Concerns about care standards
•  In cases of concern about the standard of care in a care home or an adult 
placement scheme, or about the care provided by a home care worker, 
contact social services.
•  It may also be appropriate to contact the Commission for Social Care 
Inspection (in England) or the Care and Social Services Inspectorate 
for Wales.
Concerns about healthcare or treatment
•  If someone is concerned about the care or treatment given to the person in 
any NHS setting (such as an NHS hospital or clinic) contact the managers 
of the service.
•  It may also be appropriate to make a formal complaint through the NHS 
complaints procedure (see chapter 15).
What is abuse?
14.1   The word ‘abuse’ covers a wide range of actions. In some cases, 
abuse is clearly deliberate and intentionally unkind. But sometimes 
abuse happens because somebody does not know how to act correctly 
– or they haven’t got appropriate help and support. It is important 
to prevent abuse, wherever possible. If somebody is abused, it is 
important to investigate the abuse and take steps to stop it happening.
14.2  Abuse is anything that goes against a person’s human and civil rights. 
This includes sexual, physical, verbal, fi nancial and emotional abuse. 
Abuse can be:
•  a single act
•  a series of repeated acts
•  a failure to provide necessary care, or
• neglect.
 
Abuse can take place anywhere (for example, in a person’s own home, 
a care home or a hospital).
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Mental Capacity Act Code of Practice
14.3  The main types of abuse are:
Chapter 14
Type of abuse
Examples
Financial
• theft
What means of 
• fraud
protection exist 
• undue pressure
for people who 
lack capacity to 
•  misuse of property, possessions or benefi ts
make decisions 
•  dishonest gain of property, possessions or benefi ts.
for themselves?
Physical
•  slapping, pushing, kicking or other forms of violence
•  misuse of medication (for example, increasing dosage 
to make someone drowsy)
•  inappropriate punishments (for example, not giving 
someone a meal because they have been ‘bad’).
Sexual
• rape
• sexual assault
•  sexual acts without consent (this includes if a person is 
not able to give consent or the abuser used pressure). 
Psychological
• emotional abuse
•  threats of harm, restraint or abandonment
•  refusing contact with other people
• intimidation
•  threats to restrict someone’s liberty.
Neglect and acts 
•  ignoring the person’s medical or physical care needs
of omission
•  failing to get healthcare or social care
•  withholding medication, food or heating.
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Mental Capacity Act Code of Practice
14.4  The Department of Health and the National Assembly for Wales have 
produced separate guidance on protecting vulnerable adults from 
abuse. No secrets60 (England) and In safe hands61 (Wales) both defi ne 
vulnerable adults as people aged 18 and over who:
•  need community care services due to a mental disability, other 
disability, age or illness, and
•  may be unable to take care of themselves or protect themselves 
against serious harm or exploitation.
 
This description applies to many people who lack capacity to make 
decisions for themselves.
14.5  Anyone who thinks that someone might be abusing a vulnerable adult 
who lacks capacity should:
•  contact the local social services (see paragraphs 14.27–14.28 below)
•  contact the Offi ce of the Public Guardian (see paragraph 14.8 
below), or
•  seek advice from a relevant telephone helpline62 or through the 
Community Legal Service.63
 
Full contact details are provided in Annex A.
14.6  In most cases, local adult protection procedures will say who should 
take action (see paragraphs 14.28–14.29 below). But some abuse will 
be a criminal offence, such as physical assault, sexual assault or rape, 
theft, fraud and some other forms of fi nancial exploitation. In these 
cases, the person who suspects abuse should contact the police 
urgently. The criminal investigation may take priority over all other 
forms of investigation. So all agencies will have to work together to 
plan the best way to investigate possible abuse.
60  Department of Health and Home Offi ce, No secrets: Guidance on developing and 
implementing multi-agency policies and procedures to protect vulnerable adults from 
abuse
, (2000) www.dh.gov.uk/assetRoot/04/07/45/40/04074540.pdf
61  National Assembly for Wales, In safe hands: Implementing adult protection procedures 
in Wales (2000), http://new.wales.gov.uk.about.departments/dhss/publications/social_ 
services_publications/reports/insafehands?lang=en
62  For example, the Action on Elder Abuse (0808 808 8141), Age Concern (0800 009966) or 
CarersLine (0808 808 7777)
63  Community Legal Service Direct www.clsdirect.org.uk
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Mental Capacity Act Code of Practice
14.7  The Fraud Act 2006 (due to come into force in 2007) creates a new 
offence of ‘fraud by abuse of position’. This new offence may apply to 
Chapter 14
a range of people, including:
•  attorneys under a Lasting Power of Attorney (LPA) or an Enduring 
What means of 
Power of Attorney (EPA), or
protection exist 
for people who 
•  deputies appointed by the Court of Protection to make fi nancial 
lack capacity to 
decisions on behalf of a person who lacks capacity.
make decisions 
for themselves?
 
Attorneys and deputies may be guilty of fraud if they dishonestly abuse 
their position, intend to benefi t themselves or others, and cause loss or 
expose a person to the risk of loss. People who suspect fraud should 
report the case to the police.
How does the Act protect people from abuse?
The Office of the Public Guardian
14.8  Section 57 of the Act creates a new Public Guardian, supported by 
staff of the Offi ce of the Public Guardian (OPG). The Public Guardian 
helps protect people who lack capacity by:
•  setting up and managing a register of LPAs
•  setting up and managing a register of EPAs
•  setting up and managing a register of court orders that appoint 
deputies
•  supervising deputies, working with other relevant organisations 
(for example, social services, if the person who lacks capacity is 
receiving social care)
•  sending Court of Protection Visitors to visit people who may lack 
capacity to make particular decisions and those who have formal 
powers to act on their behalf (see paragraphs 14.10–14.11 below)
•  receiving reports from attorneys acting under LPAs and from 
deputies
•  providing reports to the Court of Protection, as requested, and
•  dealing with representations (including complaints) about the way in 
which attorneys or deputies carry out their duties.
14.9  Section 59 of the Act creates a Public Guardian Board to oversee and 
review how the Public Guardian carries out these duties.
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Mental Capacity Act Code of Practice
Court of Protection Visitors
14.10  The role of a Court of Protection Visitor is to provide independent 
advice to the court and the Public Guardian. They advise on how 
anyone given power under the Act should be, and is, carrying out 
their duties and responsibilities. There are two types of visitor: General 
Visitors and Special Visitors. Special visitors are registered medical 
practitioners with relevant expertise. The court or Public Guardian can 
send whichever type of visitor is most appropriate to visit and interview 
a person who may lack capacity. Visitors can also interview attorneys 
or deputies and inspect any relevant healthcare or social care records. 
Attorneys and deputies must co-operate with the visitors and provide 
them with all relevant information. If attorneys or deputies do not 
co-operate, the court can cancel their appointment, where it thinks 
that they have not acted in the person’s best interests.
Scenario: Using a General Visitor
Mrs Quinn made an LPA appointing her nephew, Ian, as her fi nancial 
attorney. She recently lost capacity to make her own fi nancial decisions, 
and Ian has registered the LPA. He has taken control of Mrs Quinn’s 
fi nancial affairs.
But Mrs Quinn’s niece suspects that Ian is using Mrs Quinn’s money to 
pay off his own debts. She contacts the OPG, which sends a General 
Visitor to visit Mrs Quinn and Ian. The visitor’s report will assess the 
facts. It might suggest the case go to court to consider whether Ian has 
behaved in a way which:
•  goes against his authority under the LPA, or
•  is not in Mrs Quinn’s best interests.
The Public Guardian will decide whether the court should be involved in 
the matter. The court will then decide if it requires further evidence. If it 
thinks that Ian is abusing his position, the court may cancel the LPA.
14.11  Court of Protection Visitors have an important part to play in 
investigating possible abuse. But their role is much wider than this. 
They can also check on the general wellbeing of the person who lacks 
capacity, and they can give support to attorneys and deputies who 
need help to carry out their duties.
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Mental Capacity Act Code of Practice
How does the Public Guardian oversee LPAs?
Chapter 14
14.12  An LPA is a private arrangement between the donor and the attorney 
(see chapter 7). Donors should only choose attorneys that they 
can trust. The OPG provides information to help potential donors 
What means of 
understand:
protection exist 
for people who 
lack capacity to 
•  the impact of making an LPA
make decisions 
•  what they can give an attorney authority to do
for themselves?
•  what to consider when choosing an attorney.
14.13  The Public Guardian must make sure that an LPA meets the Act’s 
requirements. Before registering an LPA, the OPG will check 
documentation. For property and affairs LPAs, it will check whether an 
attorney appointed under the LPA is bankrupt since this would revoke 
the authority.
14.14  The Public Guardian will not usually get involved once somebody has 
registered an LPA – unless someone is worried about how an attorney 
is carrying out their duties. If concerns are raised about an attorney, 
the OPG works closely with organisations such as local authorities and 
NHS Trusts to carry out investigations.
How does the Public Guardian supervise deputies?
14.15  Individuals do not choose who will act as a deputy for them. The court 
will make the decision. There are measures to make sure that the court 
appoints an appropriate deputy. The OPG will then supervise deputies 
and support them in carrying out their duties, while also making sure 
they do not abuse their position.
14.16  When a case comes before the Court of Protection, the Act states 
that the court should make a decision to settle the matter rather than 
appoint a deputy, if possible. Deputies are most likely to be needed for 
fi nancial matters where someone needs continued authority to make 
decisions about the person’s money or other assets. It will be easier 
for the courts to make decisions in cases where a one-off decision 
is needed about a person’s welfare, so there are likely to be fewer 
personal welfare deputies. But there will be occasions where ongoing 
decisions about a person’s welfare will be required, and so the court 
will appoint a personal welfare deputy (see chapter 8).
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Mental Capacity Act Code of Practice
Scenario: Appointing deputies
Peter was in a motorbike accident that left him permanently and 
seriously brain-damaged. He has minimal awareness of his surroundings 
and an assessment has shown that he lacks capacity to make most 
decisions for himself.
Somebody needs to make several decisions about what treatment Peter 
needs and where he should be treated. His parents feel that healthcare 
staff do not always consider their views in decisions about what 
treatment is in Peter’s best interests. So they make an application to the 
court to be appointed as joint personal welfare deputies.
There will be many care or treatment decisions for Peter in the future. 
The court decides it would not be practical to make a separate decision 
on each of them. It also thinks Peter needs some continuity in 
decision-making. So it appoints Peter’s parents as joint personal welfare 
deputies.
14.17  The OPG may run checks on potential deputies if requested to by the 
court. It will carry out a risk assessment to determine what kind of 
supervision a deputy will need once they are appointed.
14.18  Deputies are accountable to the court. The OPG supervises the 
deputy’s actions on the court’s behalf, and the court may want the 
deputy to provide fi nancial accounts or other reports to the OPG. The 
Public Guardian deals with complaints about the way deputies carry 
out their duties. It works with other relevant agencies to investigate 
them. Chapter 8 gives detailed information about the responsibilities 
of deputies.
What happens if someone says they are worried about an 
attorney or deputy?

14.19  Many people who lack capacity are likely to get care or support from 
a range of agencies. Even when an attorney or deputy is acting on 
behalf of a person who lacks capacity, the other carers still have a 
responsibility to the person to provide care and act in the person’s 
best interests. Anybody who is caring for a person who lacks capacity, 
whether in a paid or unpaid role, who is worried about how attorneys or 
deputies carry out their duties should contact the Public Guardian. 
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Mental Capacity Act Code of Practice
14.20  The OPG will not always be the most appropriate organisation to 
investigate all complaints. It may investigate a case jointly with:
Chapter 14
•  healthcare or social care professionals
• social services
What means of 
protection exist 
• NHS bodies
for people who 
lack capacity to 
•  the Commission for Social Care Inspection in England or the Care 
make decisions 
and Social Services Inspectorate for Wales (CSSIW)64
for themselves?
•  the Healthcare Commission in England or the Healthcare 
Inspectorate for Wales, and
•  in some cases, the police.
14.21  The OPG will usually refer concerns about personal welfare LPAs 
or personal welfare deputies to the relevant agency. In certain 
circumstances it will alert the police about a case. When it makes 
a referral, the OPG will make sure that the relevant agency keeps it 
informed of the action it takes. It will also make sure that the court has 
all the information it needs to take possible action against the attorney 
or deputy.
14.22  Examples of situations in which a referral might be necessary 
include where:
•  someone has complained that a welfare attorney is physically 
abusing a donor – the OPG would refer this case to the relevant local 
authority adult protection procedures and possibly the police
•  the OPG has found that a solicitor appointed as a fi nancial deputy 
for an elderly woman has defrauded her estate – the OPG would 
refer this case to the police and the Law Society Consumer 
Complaints Service.
How does the Act deal with ill treatment and wilful neglect?
14.23  The Act introduces two new criminal offences: ill treatment and wilful 
neglect of a person who lacks capacity to make relevant decisions 
(section 44). The offences may apply to:
64  In April 2007, the Care Standards Inspectorate for Wales (CSIW) and the Social Services 
Inspectorate for Wales (SSIW) came together to form the Care and Social Services 
Inspectorate for Wales.
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Mental Capacity Act Code of Practice
•  anyone caring for a person who lacks capacity – this includes family 
carers, healthcare and social care staff in hospital or care homes and 
those providing care in a person’s home
•  an attorney appointed under an LPA or an EPA, or
•  a deputy appointed for the person by the court.
14.24  These people may be guilty of an offence if they ill-treat or wilfully 
neglect the person they care for or represent. Penalties will range from 
a fi ne to a sentence of imprisonment of up to fi ve years – or both.
14.25  Ill treatment and neglect are separate offences.65 For a person to be 
found guilty of ill treatment, they must either:
•  have deliberately ill-treated the person, or
•  be reckless in the way they were ill-treating the person or not.
 
It does not matter whether the behaviour was likely to cause, or 
actually caused, harm or damage to the victim’s health.
14.26  The meaning of ‘wilful neglect’ varies depending on the circumstances. 
But it usually means that a person has deliberately failed to carry out 
an act they knew they had a duty to do.
Scenario: Reporting abuse
Norma is 95 and has Alzheimer’s disease. Her son, Brendan, is her 
personal welfare attorney under an LPA. A district nurse has noticed 
that Norma has bruises and other injuries. She suspects Brendan may 
be assaulting his mother when he is drunk. She alerts the police and the 
local Adult Protection Committee.
Following a criminal investigation, Brendan is charged with ill-treating 
his mother. The Public Guardian applies to the court to cancel the LPA. 
Social services start to make alternative arrangements for Norma’s care.
65  R v Newington (1990) 91 Cr App R 247, CA
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Mental Capacity Act Code of Practice
What other measures protect people from abuse?
Chapter 14
14.27  Local agencies have procedures that allow them to work together 
(called multi-agency working) to protect vulnerable adults – in care 
settings and elsewhere. Most areas have Adult Protection Committees. 
What means of 
These committees:
protection exist 
for people who 
lack capacity to 
•  create policy (including reporting procedures)
make decisions 
•  oversee investigations and other activity between agencies
for themselves?
•  carry out joint training, and
•  monitor and review progress.
 
Other local authorities have developed multi-agency Adult Protection 
Procedures, which are managed by a dedicated Adult Protection 
Co-ordinator.
14.28  Adult Protection Committees and Procedures (APCP) involve 
representatives from the NHS, social services, housing, the police 
and other relevant agencies. In England, they are essential points of 
contact for anyone who suspects abuse or ill treatment of a vulnerable 
adult. They can also give advice to the OPG if it is uncertain whether 
an intervention is necessary in a case of suspected abuse. In Wales, 
APCPs are not necessarily points of contact themselves, but they 
publish details of points of contact.
Who should check that staff are safe to work with 
vulnerable adults?

14.29  Under the Safeguarding Vulnerable Groups Act 2006, criminal record 
checks are now compulsory for staff who:
•  have contact with service users in registered care homes
•  provide personal care services in someone’s home, and
•  are involved in providing adult placement schemes.
14.30  Potential employers must carry out a pre-employment criminal record 
check with the Criminal Records Bureau (CRB) for all potential new 
healthcare and social care staff. This includes nursing agency staff and 
home care agency staff.
 
See Annex A for sources of more detailed information.
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Mental Capacity Act Code of Practice
14.31  The Protection of Vulnerable Adults (POVA) list has the names of 
people who have been barred from working with vulnerable adults (in 
England and Wales). Employers providing care in a residential setting 
or a person’s own home must check whether potential employees are 
on the list.66 If they are on the list, they must:
•  refuse to employ them, or
•  employ them in a position that does not give them regular contact 
with vulnerable adults.
 
It is an offence for anyone on the list to apply for a care position. 
In such cases, the employer should report the person making the 
application.
Who is responsible for monitoring the standard of care 
providers?

14.32  All care providers covered by the Care Standards Act 2000 must 
register with the Commission for Social Care Inspection in England 
(CSCI) or the Care and Social Services Inspectorate for Wales 
(CSSIW).67 These agencies make sure that care providers meet certain 
standards. They require care providers to have procedures to protect 
people from harm or abuse. These agencies can take action if they 
discover dangerous or unsafe practices that could place people at risk.
14.33  Care providers must also have effective complaints procedures. If 
providers cannot settle complaints, CSCI or CSSIW can look into them.
14.34  CSCI or CSSIW assesses the effectiveness of local adult protection 
procedures. They will also monitor the arrangements local councils 
make in response to the Care Standards Act.
66 www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/
PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4085855&chk=p0kQeS
67  See note 64 above regarding the merger of the Care Standards Inspectorate for Wales and 
the Social Services Inspectorate for Wales.
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Mental Capacity Act Code of Practice
What is an appointee, and who monitors them?
Chapter 14
14.35  The Department for Work and Pensions (DWP) can appoint someone 
(an appointee) to claim and spend benefi ts on a person’s behalf68 if 
that person:
What means of 
protection exist 
for people who 
•  gets social security benefi ts or pensions
lack capacity to 
•  lacks the capacity to act for themselves
make decisions 
for themselves?
•  has not made a property and affairs LPA or an EPA, and
•  the court has not appointed a property and affairs deputy.
14.36  The DWP checks that an appointee is trustworthy. It also investigates 
any allegations that an appointee is not acting appropriately or in 
the person’s interests. It can remove an appointee who abuses their 
position. Concerns about appointees should be raised with the relevant 
DWP agency (the local Jobcentre Plus, or if the person is aged 60 or 
over, The Pension Service).
Are there any other means of protection that people should be 
aware of?

14.37  There are a number of additional means that exist to protect people 
who lack capacity to make decisions for themselves. Healthcare and 
social care staff, attorneys and deputies should be aware of:
•  National Minimum Standards (for example, for healthcare, care 
homes, and home care agencies) which apply to both England and 
Wales (see paragraph 14.38)
•  National Service Frameworks, which set out national standards for 
specifi c health and care services for particular groups (for example, 
for mental health services69 or services for older people70)
•  complaints procedures for all NHS bodies and local councils (see 
chapter 15)
68 www.dwp.gov.uk/publications/dwp/2005/gl21_apr.pdf
69  www.dh.gov.uk/assetRoot/04/07/72/09/04077209.pdf and www.wales.nhs.uk/sites3/page.
cfm?orgid=438&pid=11071
70  www.dh.gov.uk/assetRoot/04/07/12/83/04071283.pdf and www.wales.nhs.uk/sites3/
home.cfm?orgid=439&redirect=yes&CFID=298511&CFTOKEN=6985382
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Mental Capacity Act Code of Practice
•  Stop Now Orders (also known as Enforcement Orders) that allow 
consumer protection bodies to apply for court orders to stop poor 
trading practices (for example, unfair door-step selling or rogue 
traders).71
•  The Public Interest Disclosure Act 1998, which encourages people 
to report malpractice in the workplace and protects people who 
report malpractice from being sacked or victimised.
14.38  Information about all national minimum standards are available on 
the CSCI72 and Healthcare Commission websites73 and the Welsh 
Assembly Government website. Chapter 15 gives guidance on 
complaints procedures. Individual local authorities will have their own 
complaints system in place.
71 www.oft.gov.uk/Business/Legal/Stop+Now+Regulations.htm
72 www.csci.org.uk/information_for_service_providers/national_minimum_standards/
default.htm
73 www.healthcarecommission.org.uk/_db/_documents/The_annual_health_check_in_2006_
2007_assessing_and_rating_the_NHS_200609225143.pdf
256

15 What are the best ways to settle 
disagreements and disputes about 
issues covered in the Act?
Sometimes people will disagree about:
•  a person’s capacity to make a decision
•  their best interests
•  a decision someone is making on their behalf, or
•  an action someone is taking on their behalf.
It is in everybody’s interests to settle disagreements and disputes quickly and 
effectively, with minimal stress and cost. This chapter sets out the different 
options available for settling disagreements. It also suggests ways to avoid 
letting a disagreement become a serious dispute. Finally, it sets out when it 
might be necessary to apply to the Court of Protection and when somebody 
can get legal funding.
In this chapter, as throughout the Code, a person’s capacity (or lack of 
capacity) refers specifi cally to their capacity to make a particular decision 
at the time it needs to be made.
Quick summary
•  When disagreements occur about issues that are covered in the Act, it is 
usually best to try and settle them before they become serious.
•  Advocates can help someone who fi nds it diffi cult to communicate their 
point of view. (This may be someone who has been assessed as lacking 
capacity.)
•  Some disagreements can be effectively resolved by mediation.
•  Where there is a concern about healthcare or social care provided to 
a person who lacks capacity, there are formal and informal ways of 
complaining about the care or treatment.
•  The Health Service Ombudsman or the Local Government Ombudsman 
(in England) or the Public Services Ombudsman (in Wales) can be asked 
to investigate some problems that have not been resolved through formal 
complaints procedures.
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Mental Capacity Act Code of Practice
•  Disputes about the fi nances of a person who lacks capacity should usually 
be referred to the Offi ce of the Public Guardian (OPG).
•  When other methods of resolving disagreements are not appropriate, the 
matter can be referred to the Court of Protection.
•  There are some decisions that are so serious that the Court of Protection 
should always make them.
What options are there for settling disagreements?
15.1  Disagreements about healthcare, social or other welfare services may 
be between:
•  people who have assessed a person as lacking capacity to make a 
decision and the person they have assessed (see chapter 4 for how 
to challenge an assessment of lack of capacity)
•  family members or other people concerned with the care and 
welfare of a person who lacks capacity
•  family members and healthcare or social care staff involved in 
providing care or treatment
•  healthcare and social care staff who have different views about what 
is in the best interests of a person who lacks capacity.
15.2   In general, disagreements can be resolved by either formal or informal 
procedures, and there is more information on both in this chapter. 
However, there are some disagreements and some subjects that are so 
serious they can only be resolved by the Court of Protection.
15.3   It is usually best to try and settle disagreements before they become 
serious disputes. Many people settle them by communicating 
effectively and taking the time to listen and to address worries. 
Disagreements between family members are often best settled 
informally, or sometimes through mediation. When professionals are in 
disagreement with a person’s family, it is a good idea to start by:
•  setting out the different options in a way that is easy to understand
•  inviting a colleague to talk to the family and offer a second opinion
•  offering to get independent expert advice
•  using an advocate to support and represent the person who lacks 
capacity
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Mental Capacity Act Code of Practice
•  arranging a case conference or meeting to discuss matters in detail
•  listening to, acknowledging and addressing worries, and
Chapter 15
•  where the situation is not urgent, allowing the family time to think 
it over.
What are the best 
ways to settle 
disagreements 
 
Further guidance on how to deal with problems without going to court 
and disputes 
may also be found in the Community Legal Services Information Leafl et 
about issues 
‘Alternatives to Court’.74
covered in the 
Act?
When is an advocate useful?
15.4   An advocate helps communicate the feelings and views of someone 
who has communication diffi culties. The defi nition of advocacy set out 
in the Advocacy Charter adopted by most advocacy schemes is as 
follows: ‘Advocacy is taking action to help people say what they want, 
secure their rights, represent their interests and obtain services they 
need. Advocates and advocacy schemes work in partnership with the 
people they support and take their side. Advocacy promotes social 
inclusion, equality and social justice.’75
 
An advocate may be able to help settle a disagreement simply by 
presenting a person’s feelings to their family, carers or professionals. 
Most advocacy services are provided by the voluntary sector and are 
arranged at a local level. They have no link to any agency involved with 
the person.
15.5  Using advocates can help people who fi nd it diffi cult to communicate 
(including those who have been assessed as lacking capacity) to:
•  say what they want
•  claim their rights
•  represent their interests, and
•  get the services they need.
15.6  Advocates may also be involved in supporting the person during 
mediation (see paragraphs 15.7–15.13 below) or helping with 
complaints procedures. Sometimes people who lack capacity or have 
been assessed as lacking capacity have a legal right to an advocate, 
for example:
74  CLS (Community Legal Services) Direct Information Leafl et Number 23, 
www.clsdirect.org.uk/legalhelp/leafl et23.jsp?lang=en
75  Advocacy across London, Advocacy Charter (2002)
259

Mental Capacity Act Code of Practice
•  when making a formal complaint against the NHS (see paragraph 
15.18), and
•  where the Act requires the involvement of an Independent Mental 
Capacity Advocate (IMCA) (see chapter 10).
When is mediation useful?
15.7  A mediator helps people to come to an agreement that is acceptable 
to all parties. Mediation can help solve a problem at an early stage. It 
offers a wider range of solutions than the court can – and it may be 
less stressful for all parties, more cost-effective and quicker. People 
who come to an agreement through mediation are more likely to keep 
to it, because they have taken part in decision-making.
15.8  Mediators are independent. They have no personal interest in the 
outcome of a case. They do not make decisions or impose solutions. 
The mediator will decide whether the case is suitable for mediation. 
They will consider the likely chances of success and the need to 
protect the interests of the person who lacks capacity.
15.9  Any case that can be settled through negotiation is likely to benefi t 
from mediation. It is most suitable when people are not communicating 
well or not understanding each other’s point of view. It can improve 
relationships and stop future disputes, so it is a good option when it 
is in the person’s interests for people to have a good relationship in 
the future.
Scenario: Using mediation
Mrs Roberts has dementia and lacks capacity to decide where she 
should live. She currently lives with her son. But her daughter has found 
a care home where she thinks her mother will get better care. Her brother 
disagrees.
Mrs Roberts is upset by this family dispute, and so her son and daughter 
decide to try mediation. The mediator believes that Mrs Roberts is able 
to communicate her feelings and agrees to take on the case. During 
the sessions, the mediator helps them to focus on their mother’s best 
interests rather than imposing their own views. In the end, everybody 
agrees that Mrs Roberts should continue to live with her son. But they 
agree to review the situation again in six months to see if the care home 
might then be better for her.
260

Mental Capacity Act Code of Practice
15.10  In mediation, everybody needs to take part as equally as possible so 
that a mediator can help everyone involved to focus on the person’s 
Chapter 15
best interests. It might also be appropriate to involve an advocate to 
help communicate the wishes of the person who lacks capacity.
What are the best 
15.11  The National Mediation Helpline76 helps callers to identify an effective 
ways to settle 
disagreements 
means of resolving their diffi culty without going to court. It will arrange 
and disputes 
an appointment with a trained and accredited mediator. The Family 
about issues 
Mediation Helpline77 can provide information on family mediation 
covered in the 
and referrals to local family mediation services. Family mediators are 
Act?
trained to deal with the emotional, practical and fi nancial needs of 
those going through relationship breakdown.
15.12  Healthcare and social care staff may also take part in mediation 
processes. But it may be more appropriate to follow the relevant 
healthcare or social care complaints procedures (see paragraphs 
15.14–15.32).
15.13  In certain situations (mainly family mediation), legal aid may be 
available to fund mediation for people who meet the qualifying criteria 
(see paragraphs 15.38–15.44).
How can someone complain about healthcare?
15.14  There are formal and informal ways of complaining about a patient’s 
healthcare or treatment. Healthcare staff and others need to know 
which methods are suitable in which situations.
15.15  In England, the Patient Advice and Liaison Service (PALS) provides an 
informal way of dealing with problems before they reach the complaints 
stage. PALS operate in every NHS and Primary Care Trust in England. 
They provide advice and information to patients (or their relatives or 
carers) to try to solve problems quickly. They can direct people to 
specialist support services (for example, advocates, mental health 
support teams, social services or interpreting services). PALS do not 
investigate complaints. Their role is to explain complaints procedures 
and direct people to the formal NHS complaints process, if necessary. 
NHS complaints procedures deal with complaints about something that 
happened in the past that requires an apology or explanation. A court 
cannot help in this situation, but court proceedings may be necessary 
in some clinical negligence cases (see paragraph 15.22).
76  National Mediation Helpline, Tel: 0845 60 30 809, www.nationalmediationhelpline.com
77  Family Mediation Helpline, Tel: 0845 60 26 627, www.familymediationhelpline.co.uk
261

Mental Capacity Act Code of Practice
15.16  In Wales, complaints advocates based at Community Health Councils 
provide advice and support to anyone with concerns about treatment 
they have had.
Disagreements about proposed treatments
15.17  If a case is not urgent, the supportive atmosphere of the PALS may 
help settle it. In Wales, the local Community Health Council may be 
able to help. But urgent cases about proposed serious treatment may 
need to go to the Court of Protection (see paragraphs 15.35–15.36).
Scenario: Disagreeing about treatment or an assessment
Mrs Thompson has Alzheimer’s and does not want a fl u jab. Her 
daughter thinks she should have the injection. The doctor does not want 
to go against the wishes of his patient, because he believes she has 
capacity to refuse treatment.
Mrs Thompson’s daughter goes to PALS. A member of staff gives her 
information and advice about what is meant by capacity to consent 
to or refuse treatment, and tells her how to fi nd out about the fl u jab. 
The PALS staff speak to the doctor, and then they explain his clinical 
assessment to Mrs Thompson’s daughter.
The daughter is still unhappy. PALS staff advise her that the Independent 
Complaints Advocacy Service can help if she wishes to make a formal 
complaint.
The formal NHS complaints procedure
15.18  The formal NHS complaints procedure deals with complaints about 
NHS services provided by NHS organisations or primary care 
practitioners. As a fi rst step, people should try to settle a disagreement 
through an informal discussion between:
•  the healthcare staff involved
•  the person who may lack capacity to make the decision in question 
(with support if necessary)
•  their carers, and
•  any appropriate relatives.
262

Mental Capacity Act Code of Practice
 
If the person who is complaining is not satisfi ed, the Independent 
Complaints Advocacy Service (ICAS) may help. In Wales, the 
Chapter 15
complaints advocates based at Community Health Councils will 
support and advise anyone who wants to make a complaint.
What are the best 
15.19  In England, if the person is still unhappy after a local investigation, they 
ways to settle 
disagreements 
can ask for an independent review by the Healthcare Commission. 
and disputes 
If the patient involved in the complaint was or is detained under the 
about issues 
Mental Health Act 1983, the Mental Health Act Commission can be 
covered in the 
asked to look into the complaint. If people are still unhappy after 
Act?
this stage, they can go to the Health Service Ombudsman. More 
information on how to make a complaint in England is available from 
the Department of Health.
15.20  In Wales, if patients are still unhappy after a local investigation, they 
can ask for an independent review of their complaint by independent 
lay reviewers. After this, they can take their case to the Public Services 
Ombudsman for Wales. People can take their complaint direct to the 
Ombudsman if:
•  the complaint is about care or treatment that took place after 1 April 
2006, and
•  they have tried to settle the problem locally fi rst.
 
The Mental Health Act Commission may also investigate complaints 
about the care or treatment of detained patients in Wales, if attempts 
have been made to settle the complaint locally without success.
15.21  Regulations about fi rst trying to settle complaints locally do not 
apply to NHS Foundation Trusts. But these Trusts are covered by the 
independent review stage operated by the Healthcare Commission 
and by the Health Service Ombudsman. People who have a complaint 
about an NHS Foundation Trust should contact the Trust for advice on 
how to make a complaint.
Cases of clinical negligence
15.22  The NHS Litigation Authority oversees all clinical negligence cases 
brought against the NHS in England. It actively encourages people 
to try other forms of settling complaints before going to court. The 
National Assembly for Wales also encourages people to try other forms 
of settling complaints before going to court.
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Mental Capacity Act Code of Practice
How can somebody complain about social care?
15.23  The social services complaints procedure has been reformed. The 
reformed procedure came into effect on 1 September 2006 in England 
and on 1 April 2006 in Wales.
15.24  A service provider’s own complaints procedure should deal with 
complaints about:
•  the way in which care services are delivered
•  the type of services provided, or
•  a failure to provide services.
15.25  Care agencies contracted by local authorities or registered with the 
Commission for Social Care Inspection (CSCI) in England or Care and 
Social Services Inspectorate for Wales (CSSIW) are legally obliged to 
have their own written complaints procedures. This includes residential 
homes, agencies providing care in people’s homes, nursing agencies 
and adult placement schemes. The procedures should set out how 
to make a complaint and what to do with a complaint that cannot be 
settled locally.
Local authority complaints procedures
15.26  For services contracted by a local authority, it may be more appropriate 
to use the local authority’s complaints procedure. A simple example 
would be a situation where a local authority places a person in a care 
home and the person’s family are not happy with the placement. If their 
complaint is not about the services the home provides (for example, it 
might be about the local authority’s assessment of the person’s needs), 
it might be more appropriate to use the local authority’s complaints 
procedure.
15.27  As a fi rst step, people should try to settle a disagreement through an 
informal discussion, involving:
•  the professionals involved
•  the person who may lack capacity to make the decision in question 
(with support if necessary)
•  their carers, and
•  any appropriate relatives.
264

Mental Capacity Act Code of Practice
15.28  If the person making the complaint is not satisfi ed, the local authority 
will carry out a formal investigation using its complaints procedure. In 
Chapter 15
England, after this stage, a social service Complaints Review Panel 
can hear the case. In Wales complaints can be referred to the National 
Assembly for Wales for hearing by an independent panel.
What are the best 
ways to settle 
disagreements 
Other complaints about social care
and disputes 
15.29  People can take their complaint to the CSCI in England or the CSSIW 
about issues 
covered in the 
in Wales, if:
Act?
•  the complaint is about regulations or national minimum standards 
not being met, and
•  the complainants are not happy with the provider’s own complaints 
procedure or the response to their complaint.
15.30  If a complaint is about a local authority’s administration, it may be 
referred to the Commission for Local Administration in England (the 
Local Government Ombudsman) or the Public Services Ombudsman 
for Wales.
What if a complaint covers healthcare and social care?
15.31  Taking a complaint through NHS or local authority complaints 
procedures can be a complicated process – especially if the complaint 
covers a number of service providers or both healthcare and social 
care. In such situations, local authorities and the NHS must work 
together and agree which organisation will lead in handling the 
complaint. If a person is not happy with the outcome, they can 
take their case to the Health Service Ombudsman or to the Local 
Government Ombudsman (in England). There is guidance which sets 
out how organisations should work together to handle complaints 
that cover healthcare and social care (in England Learning from 
Complaints
 and in Wales Listening and learning). The Public Services 
Ombudsman for Wales handles complaints that cover both healthcare 
and social care.
Who can handle complaints about other welfare issues?
15.32  The Independent Housing Ombudsman deals with complaints about 
registered social landlords in England. This applies mostly to housing 
associations. But it also applies to many landlords who manage 
homes that were formerly run by local authorities and some private 
landlords. In Wales, the Public Services Ombudsman for Wales deals 
265

Mental Capacity Act Code of Practice
with complaints about registered social landlords. Complaints about 
local authorities may be referred to the Local Government Ombudsman 
in England or the Public Services Ombudsman for Wales. They look 
at complaints about decisions on council housing, social services, 
Housing Benefi t and planning applications. More information about 
complaints to an Ombudsman is available on the relevant websites 
(see Annex A).
What is the best way to handle disagreement about a person’s 
finances?

15.33  Some examples of disagreements about a person’s fi nances are:
•  disputes over the amount of money a person who lacks capacity 
should pay their carer
•  disputes over whether a person who lacks capacity should sell 
their house
•  somebody questioning the actions of a carer, who may be using the 
money of a person who lacks capacity inappropriately or without 
proper authority
•  somebody questioning the actions of an attorney appointed under 
a Lasting Power of Attorney or an Enduring Power of Attorney or a 
deputy appointed by the court.
15.34  In all of the above circumstances, the most appropriate action would 
usually be to contact the Offi ce of the Public Guardian (OPG) for 
guidance and advice. See chapter 14 for further details on the role of 
the OPG.
How can the Court of Protection help?
15.35  The Court of Protection deals with all areas of decision-making for 
adults who lack capacity to make particular decisions for themselves 
(see chapter 8 for more information about its roles and responsibilities). 
But the court is not always the right place to settle problems involving 
people who lack capacity. Other forms of settling disagreements may 
be more appropriate and less distressing.
266

Mental Capacity Act Code of Practice
15.36  There are some decisions that are so serious that the court should 
always make them. There are also other types of cases that the court 
Chapter 15
should deal with when another method would generally not be suitable. 
See chapter 8 for more information about both kinds of cases.
What are the best 
Right of Appeal
ways to settle 
disagreements 
15.37  Section 53 of the Act describes the rights of appeal against any 
and disputes 
decision taken by the Court of Protection. There are further details 
about issues 
covered in the 
in the Court of Protection Rules. It may be advisable for anyone who 
Act?
wishes to appeal a decision made by the court to seek legal advice.
Will public legal funding be available?
15.38  Depending on their fi nancial situation, once the Act comes into force 
people may be entitled to:
•  publicly funded legal advice from accredited solicitors or advice 
agencies
•  legal representation before the new Court of Protection (in the most 
serious cases).
 
Information about solicitors and organisations who give advice on 
different areas of law is available from Community Legal Services Direct 
(CLS Direct).78 Further information about legal aid and public funding 
can be obtained from the Legal Services Commission.79 See Annex A 
for full contact details.
15.39  People who lack capacity to instruct a solicitor or conduct their own 
case will need a litigation friend. This person could be a relative, friend, 
attorney or the Offi cial Solicitor (when no-one else is available). The 
litigation friend is able to instruct the solicitor and conduct the case on 
behalf of a person who lacks capacity to give instructions. If the person 
qualifi es for public legal funding, the litigation friend can claim funding 
on their behalf.
78  CLS Direct, Tel: 0845 345 4 345, www.clsdirect.org.uk
79 www.legalservices.gov.uk
267

Mental Capacity Act Code of Practice
When can someone get legal help?
15.40  Legal help is a type of legal aid (public funding) that pays for advice 
and assistance on legal issues, including those affecting a person 
who lacks capacity. But it does not provide representation for a full 
court hearing, although there is a related form of funding called ‘help 
at court’ under which a legal representative can speak in court on a 
client’s behalf on an informal basis. To qualify for legal help, applicants 
must show that:
•  they get specifi c social security benefi ts, or they earn less than a 
specifi c amount and do not have savings or other fi nancial assets in 
excess of a specifi c amount
•  they would benefi t suffi ciently from legal advice to justify the amount 
it costs, and
•  they cannot get another form of funding.
15.41  Legal help can include:
•  help from a solicitor or other representative in writing letters
•  in exceptional circumstances, getting a barrister’s opinion, and
•  assistance in preparing for Court of Protection hearings.
15.42  People cannot get legal help for making a Lasting Power of Attorney or 
an advance decision to refuse treatment. But they can get general help 
and information from the OPG. The OPG cannot give legal or specialist 
advice. For example, they will not be able to advise someone on what 
powers they should delegate to their attorney under an LPA.
When can someone get legal representation?
15.43  Public funding for legal representation in the Court of Protection will be 
available from solicitors with a relevant contract – but only for the most 
serious cases. To qualify, applicants will normally face the same test as 
for legal help to qualify fi nancially (paragraph 15.40). They will generally 
have to satisfy more detailed criteria than applicants for legal help, 
relating, for instance, to their prospects of being successful, to whether 
legal representation is necessary and to the cost benefi t of being 
represented. They will also have to establish that the case could not be 
brought or funded in another way and that there are not alternatives to 
court proceedings that should be explored fi rst.
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Mental Capacity Act Code of Practice
15.44  Serious personal welfare cases that were previously heard by the High 
Court will continue to have public funding for legal representation 
Chapter 15
when they are transferred to the Court of Protection. These cases 
will normally be related to personal liberty, serious welfare decisions 
or medical treatment for a person who lacks capacity. But legal 
What are the best 
representation may also be available in other types of cases, 
ways to settle 
disagreements 
depending on the particular circumstances.
and disputes 
about issues 
covered in the 
Act?
269

16 What rules govern access to 
information about a person who 
lacks capacity?
This chapter gives guidance on:
•  what personal information about someone who lacks capacity people 
involved in their care have the right to see, and
•  how they can get hold of that information.
This chapter is only a general guide. It does not give detailed information 
about the law. Nor does it replace professional guidance or the guidance of 
the Information Commissioner’s Offi ce on the Data Protection Act 1998 (this 
guidance is available on its website, see Annex A). Where necessary, people 
should take legal advice.
This chapter is mainly for people such as family carers and other carers, 
deputies and attorneys, who care for or represent someone who lacks 
capacity to make specifi c decisions and in particular, lacks capacity to allow 
information about them to be disclosed. Professionals have their own codes 
of conduct, and they may have the support of experts in their organisations.
In this chapter, as throughout the Code, a person’s capacity (or lack of 
capacity) refers specifi cally to their capacity to make a particular decision 
at the time it needs to be made.
Quick summary
Questions to ask when requesting personal information about someone who 
may lack capacity

•  Am I acting under a Lasting Power of Attorney or as a deputy with specifi c 
authority?
•  Does the person have capacity to agree that information can be disclosed? 
Have they previously agreed to disclose the information?
•  What information do I need?
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Mental Capacity Act Code of Practice
•  Why do I need it?
•  Who has the information?
Chapter 16
•  Can I show that:
What rules 
 – 
 
I need the information to make a decision that is in the best interests of 
govern access to 
the person I am acting for, and
information about 
 – 
 
the person does not have the capacity to act for themselves?
a person who 
lacks capacity?
•  Do I need to share the information with anyone else to make a decision that 
is in the best interests of the person who lacks capacity?
•  Should I keep a record of my decision or action?
•  How long should I keep the information for?
•  Do I have the right to request the information under section 7 of the Data 
Protection Act 1998?
Questions to ask when considering whether to disclose information
•  Is the request covered by section 7 of the Data Protection Act 1998? Is the 
request being made by a formally authorised representative?
If not:
•  Is the disclosure legal?
•  Is the disclosure justifi ed, having balanced the person’s best interests and 
the public interest against the person’s right to privacy?
Questions to ask to decide whether the disclosure is legal or justifi ed
•  Do I (or does my organisation) have the information?
•  Am I satisfi ed that the person concerned lacks capacity to agree to 
disclosure?
•  Does the person requesting the information have any formal authority to act 
on behalf of the person who lacks capacity?
•  Am I satisfi ed that the person making the request:
 – 
 
is acting in the best interests of the person concerned?
 – 
 
needs the information to act properly?
 – 
 
will respect confi dentiality?
 – 
 
will keep the information for no longer than necessary?
•  Should I get written confi rmation of these things?
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Mental Capacity Act Code of Practice
What laws and regulations affect access to information?
16.1  People caring for, or managing the fi nances of, someone who lacks 
capacity may need information to:
•  assess the person’s capacity to make a specifi c decision
•  determine the person’s best interests, and
•  make appropriate decisions on the person’s behalf.
16.2  The information they need varies depending on the circumstances. 
For example:
•  a daughter providing full-time care for an elderly parent will 
make decisions based on her own experience and knowledge 
of her parent
•  a deputy may need information from other people. For instance, 
if they were deciding whether a person needs to move into a care 
home or whether they should sell the person’s home, they might 
need information from family members, the family doctor, the 
person’s bank and their solicitor to make sure they are making the 
decision in the person’s best interests.
16.3  Much of the information needed to make decisions under the Act is 
sensitive or confi dential. It is regulated by:
•  the Data Protection Act 1998
•  the common law duty of confi dentiality
•  professional codes of conduct on confi dentiality, and
•  the Human Rights Act 1998 and European Convention on Human 
Rights, in particular Article 8 (the right to respect for private and 
family life), which means that it is only lawful to reveal someone’s 
personal information if:
 – 
 
there is a legitimate aim in doing so
  –  a democratic society would think it necessary to do so, and
 – 
 
the kind and amount of information disclosed is in relation to 
the need.
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Mental Capacity Act Code of Practice
What information do people generally have a right to see?
Chapter 16
16.4  Section 7 of the Data Protection Act 1998 gives everyone the right to 
see personal information that an organisation holds about them. They 
may also authorise someone else to access their information on their 
What rules 
behalf. The person holding the information has a legal duty to release 
govern access to 
information about 
it. So, where possible, it is important to try to get a person’s consent 
a person who 
before requesting to see information about them.
lacks capacity?
16.5  A person may have the capacity to agree to someone seeing their 
personal information, even if they do not have the capacity to make 
other decisions. In some situations, a person may have previously 
given consent (while they still had capacity) for someone to see their 
personal information in the future.
16.6  Doctors and lawyers cannot share information about their clients, or 
that clients have given them, without the client’s consent. Sometimes 
it is fair to assume that a doctor or lawyer already has someone’s 
consent (for example, patients do not usually expect healthcare staff 
or legal professionals to get consent every time they share information 
with a colleague – but staff may choose to get clients’ consent in 
writing when they begin treating or acting for that person). But in other 
circumstances, doctors and lawyers must get specifi c consent to 
‘disclose’ information (share it with someone else).
16.7  If someone’s capacity changes from time to time, the person needing 
the information may want to wait until that person can give their 
consent. Or they may decide that it is not necessary to get access to 
information at all, if the person will be able to make a decision on their 
own in the future.
16.8  If someone lacks the capacity to give consent, someone else might still 
be able to see their personal information. This will depend on:
•  whether the person requesting the information is acting as an 
agent (a representative recognised by the law, such as a deputy or 
attorney) for the person who lacks capacity
•  whether disclosure is in the best interests of the person who lacks 
capacity, and
•  what type of information has been requested.
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Mental Capacity Act Code of Practice
When can attorneys and deputies ask to see personal 
information?

16.9  An attorney acting under a valid LPA or EPA (and sometimes a 
deputy) can ask to see information concerning the person they are 
representing, as long as the information applies to decisions the 
attorney has the legal right to make.
16.10  In practice, an attorney or deputy may only require limited information 
and may not need to make a formal request. In such circumstances, 
they can approach the information holder informally. Once satisfi ed that 
the request comes from an attorney or deputy (having seen appropriate 
authority), the person holding information should be able to release it. 
The attorney or deputy can still make a formal request for information 
in the future.
16.11  The attorney or deputy must treat the information confi dentially. They 
should be extremely careful to protect it. If they fail to do so, the court 
can cancel the LPA or deputyship.
16.12  Before the Act came into effect, only a few receivers were appointed 
with the general authority to manage a person’s property and affairs. 
So they needed specifi c authority from the Court of Protection to ask 
for access to the person’s personal information. Similarly, a deputy who 
only has authority to act in specifi c areas only has the right to ask for 
information relating to decisions in those specifi c areas. For information 
relating to other areas, the deputy will need to apply to the Court of 
Protection.
16.13  Requests for personal information must be in writing, and there might 
be a fee. Information holders should release it promptly (always within 
40 calendar days). Fees may be particularly high for getting copies of 
healthcare records – particularly where information may be in unusual 
formats (for example, x-rays). The maximum fee is currently £50. 
Complaints about a failure to comply with the Data Protection Act 
1998 should be directed to the Information Commissioner’s Offi ce (see 
Annex A for contact details).
What limitations are there?
16.14  Attorneys and deputies should only ask for information that will help 
them make a decision they need to make on behalf of the person who 
lacks capacity. For example, if the attorney needs to know when the 
person should take medication, they should not ask to see the entire 
healthcare record. The person who releases information must make 
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Mental Capacity Act Code of Practice
sure that an attorney or deputy has offi cial authority (they may ask 
for proof of identity and appointment). When asking to see personal 
Chapter 16
information, attorneys and deputies should bear in mind that their 
decision must always be in the best interests of the person who lacks 
capacity to make that decision. 
What rules 
govern access to 
16.15  The attorney or deputy may not know the kind of information that 
information about 
a person who 
someone holds about the person they are representing. So sometimes 
lacks capacity?
it might be diffi cult for them to make a specifi c request. They might 
even need to see all the information to make a decision. But again, the 
‘best interests’ principle applies.
Scenario: Giving attorneys access to personal information
Mr Yapp is in the later stages of Alzheimer’s disease. His son is 
responsible for Mr Yapp’s personal welfare under a Lasting Power of 
Attorney. Mr Yapp has been in residential care for a number of years. But 
his son does not think that the home is able to meet his father’s current 
needs as his condition has recently deteriorated.
The son asks to see his father’s records. He wants specifi c information 
about his father’s care, so that he can make a decision about his father’s 
best interests. But the manager of the care home refuses, saying that the 
Data Protection Act stops him releasing personal information.
Mr Yapp’s son points out that he can see his father’s records, because 
he is his personal welfare attorney and needs the information to make a 
decision. The Data Protection Act 1998 requires the care home manager 
to provide access to personal data held on Mr Yapp.
16.16  The deputy or attorney may fi nd that some information is held back 
(for example, when this contains references to people other than the 
person who lacks capacity). This might be to protect another person’s 
privacy, if that person is mentioned in the records. It is unlikely that 
information relating to another person would help an attorney make a 
decision on behalf of the person who lacks capacity. The information 
holder might also be obliged to keep information about the other 
person confi dential. There might be another reason why the person 
does not want information about them to be released. Under these 
circumstances, the attorney does not have the right to see that 
information.
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Mental Capacity Act Code of Practice
16.17  An information holder should not release information if doing so would 
cause serious physical or mental harm to anyone – including the 
person the information is about. This applies to information on health, 
social care and education records.
16.18  The Information Commissioner’s Offi ce can give further details on:
•  how to request personal information
•  restrictions on accessing information, and
•  how to appeal against a decision not to release information.
When can someone see information about healthcare or 
social care?

16.19  Healthcare and social care staff may disclose information about 
somebody who lacks capacity only when it is in the best interests of 
the person concerned to do so, or when there is some other, lawful 
reason for them to do so.
16.20  The Act’s requirement to consult relevant people when working out the 
best interests of a person who lacks capacity will encourage people to 
share the information that makes a consultation meaningful. But people 
who release information should be sure that they are acting lawfully 
and that they can justify releasing the information. They need to 
balance the person’s right to privacy with what is in their best interests 
or the wider public interest (see paragraphs 16.24–16.25 below).
16.21  Sometimes it will be fairly obvious that staff should disclose 
information. For example, a doctor would need to tell a new care 
worker about what drugs a person needs or what allergies the person 
has. This is clearly in the person’s best interests.
16.22  Other information may need to be disclosed as part of the process of 
working out someone’s best interests. A social worker might decide to 
reveal information about someone’s past when discussing their best 
interests with a close family member. But staff should always bear in 
mind that the Act requires them to consider the wishes and feelings of 
the person who lacks capacity.
16.23  In both these cases, staff should only disclose as much information as 
is relevant to the decision to be made.
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Mental Capacity Act Code of Practice
Scenario: Sharing appropriate information
Chapter 16
Mr Jeremy has learning disabilities. His care home is about to close 
down. His care team carries out a careful assessment of his needs. They 
What rules 
involve him as much as possible, and use the support of an Independent 
govern access to 
Mental Capacity Advocate. Following the assessment, he is placed with 
information about 
carers under an adult placement scheme.
a person who 
lacks capacity?
The carers ask to see Mr Jeremy’s case fi le, so that they can provide 
him with appropriate care in his best interests. The care manager seeks 
Mr Jeremy’s consent to disclosure of his notes, but believes that Mr 
Jeremy lacks capacity to make this decision. She recognises that it is 
appropriate to provide the carers with suffi cient information to enable 
them to act in Mr Jeremy’s best interests. But it is not appropriate for 
them to see all the information on the case fi le. Much of it is not relevant 
to his current care needs. The care manager therefore only passes on 
relevant information from the fi le.
16.24  Sometimes a person’s right to confi dentiality will confl ict with broader 
public concerns. Information can be released if it is in the public 
interest, even if it is not in the best interests of the person who lacks 
capacity. It can be diffi cult to decide in these cases, and information 
holders should consider each case on its merits. The NHS Code on 
Confi dentiality gives examples of when disclosure is in the public 
interest. These include situations where disclosing information could 
prevent, or aid investigation of, serious crimes, or to prevent serious 
harm, such as spread of an infectious disease. It is then necessary 
to judge whether the public good that would be achieved by the 
disclosure outweighs both the obligation of confi dentiality to the 
individual concerned and the broader public interest in the provision of 
a confi dential service.
16.25  For disclosure to be in the public interest, it must be proportionate 
and limited to the relevant details. Healthcare or social care staff faced 
with this decision should seek advice from their legal advisers. It is not 
just things for ‘the public’s benefi t’ that are in the public interest – 
disclosure for the benefi t of the person who lacks capacity can also be 
in the public interest (for example, to stop a person who lacks capacity 
suffering physical or mental harm).
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Mental Capacity Act Code of Practice
What financial information can carers ask to see?
16.26  It is often more diffi cult to get fi nancial information than it is to get 
information on a person’s welfare. A bank manager, for example, is less 
likely to:
•  know the individual concerned
•  be able to make an assessment of the person’s capacity to consent 
to disclosure, and
•  be aware of the carer’s relationship to the person.
 
So they are less likely than a doctor or social worker to be able to 
judge what is in a person’s best interests and are bound by duties 
to keep clients’ affairs confi dential. It is likely that someone wanting 
fi nancial information will need to apply to the Court of Protection for 
access to that information. This clearly does not apply to an attorney 
or a deputy appointed to manage the person’s property and affairs, 
who will generally have the authority (because of their appointment) to 
obtain all relevant information about the person’s property and affairs.
Is information still confidential after someone shares it?
16.27  Whenever a carer gets information, they should treat the information in 
confi dence, and they should not share it with anyone else (unless there 
is a lawful basis for doing so). In some circumstances, the information 
holder might ask the carer to give a formal confi rmation that they will 
keep information confi dential. 
16.28  Where the information is in written form, carers should store it carefully 
and not keep it for longer than necessary. In many cases, the need to 
keep the information will be temporary. So the carer should be able 
to reassure the information holder that they will not keep a permanent 
record of the information.
What is the best way to settle a disagreement about personal 
information?

16.29  A carer should always start by trying to get consent from the person 
whose information they are trying to access. If the person lacks 
capacity to consent, the carer should ask the information holder for 
the relevant information and explain why they need it. They may need 
to remind the information holder that they have to make a decision 
in the person’s best interests and cannot do so without the relevant 
information.
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Mental Capacity Act Code of Practice
16.30  This can be a sensitive area and disputes will inevitably arise. 
Healthcare and social care staff have a diffi cult judgement to make. 
Chapter 16
They might feel strongly that disclosing the information would not 
be in the best interests of the person who lacks capacity and would 
amount to an invasion of their privacy. This may be upsetting for the 
What rules 
carer who will probably have good motives for wanting the information. 
govern access to 
In all cases, an assessment of the interests and needs of the person 
information about 
a person who 
who lacks capacity should determine whether staff should disclose 
lacks capacity?
information.
16.31  If a discussion fails to settle the matter, and the carer still is not happy, 
there are other ways to settle the disagreement (see chapter 15). The 
carer may need to use the appropriate complaints procedure. Since 
the complaint involves elements of data protection and confi dentiality, 
as well as best interests, relevant experts should help deal with the 
complaint.
16.32  In cases where carers and staff cannot settle their disagreement, the 
carer can apply to the Court of Protection for the right to access to the 
specifi c information. The court would then need to decide if this was 
in the best interests of the person who lacks capacity to consent. In 
urgent cases, it might be necessary for the carer to apply directly to the 
court without going through the earlier stages.
279

Key words and phrases used in the Code
The table below is not a full index or glossary. Instead, it is a list of key terms 
used in the Code or the Act, and the main references to them. References in 
bold indicate particularly valuable content for that term.
Acts in 
Tasks carried out by carers, healthcare or social 
Chapter 6
connection 
care staff which involve the personal care, 
2.13–2.14, 4.39
with care or 
healthcare or medical treatment of people who 
Best interests and _ 
treatment
lack capacity to consent to them – referred to in 
5.10, 5,39
the Act as ‘section 5 acts’.
Deprivation of liberty 
and _ 6.39. 
6.49–6.52
Advance 
A decision to refuse specifi ed treatment made 
Chapter 9 (all)
decision 
in advance by a person who has capacity to do 
Best interests and _ 
to refuse 
so. This decision will then apply at a future time 
5.5, 5.35, 5.45
treatment
when that person lacks capacity to consent to, or 
Protection from 
refuse, the specifi ed treatment. This is set out in 
liability and _ 
Section 24(1) of the Act.
6.37–6.38
LPAs and _ 7.55
Specifi c rules apply to advance decisions to 
Deputies and _ 8.28
refuse life-sustaining treatment.
Research and _ 
11.30
Young people and _ 
12.9
Mental Health Act 
13.35–13.37
Adult 
Procedures devised by local authorities, in 
Chapter 14
protection 
conjunction with other relevant agencies, to 
14.6, 14.22, 
procedures
investigate and deal with allegations of abuse or ill 
14.27–28, 14.34
treatment of vulnerable adults, and to put in place 
IMCAs and _ 
safeguards to provide protection from abuse.
10.66–10.67
After-care 
Arrangements for supervision in the community 
Chapter 13
under 
following discharge from hospital of certain 
13.22–13.25, 13.34, 
supervision
patients previously detained under the Mental 
13.37, 13.40, 13.42, 
Health Act 1983.
13.45, 13.48, 13.52
Agent
A person authorised to act on behalf of another 
LPAs and _ 
person under the law of agency.
7.58–7.68
Deputies and _ 
Attorneys appointed under an LPA or EPA are 
8.55–8.68
agents and court-appointed deputies are deemed 
to be agents and must undertake certain duties 
as agents.
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Mental Capacity Act Code of Practice
Appointee
Someone appointed under Social Security 
Role of _ 6:65–6.66
Regulations to claim and collect social security 
Deputies and _ 8.56
Key words
benefi ts or pensions on behalf of a person who 
Concerns about   _ 
lacks capacity to manage their own benefi ts. An 
14:35–14.36
appointee is permitted to use the money claimed 
Key words and 
to meet the person’s needs.
phrases used in 
the Code
Appropriate 
A committee which is established to advise on, or 
Chapter 11
body
on matters which include, the ethics of intrusive 
11.8–11.11, 11.20, 
research in relation to people who lack capacity 
11.33–11.34,
to consent to it, and is recognised for those 
11.43–11.47.
purposes by the Secretary of State (in England) or 
the National Assembly for Wales (in Wales).
Approved 
A specially trained social worker with 
Chapter 13
Social 
responsibility for assessing a person’s needs for 
13.16, 13.22–13.23, 
Worker 
care and treatment under the Mental Health Act 
13.43, 13.52
(ASW)
1983. In particular, an ASW assesses whether 
the person should be admitted to hospital for 
assessment and/or treatment.
Artifi cial 
Artifi cial nutrition and hydration (ANH) has been 
9.26
Nutrition and 
recognised as a form of medical treatment. ANH 
5.34
Hydration 
involves using tubes to provide nutrition and fl uids 
6.18
(ANH)
to someone who cannot take them by mouth. It 
8.18
bypasses the natural mechanisms that control 
hunger and thirst and requires clinical monitoring.
Attorney
Someone appointed under either a Lasting 
Chapter 7
Power of Attorney (LPA) or an Enduring Power of 
Best interests 
Attorney (EPA), who has the legal right to make 
principle and _ 5.2, 
decisions within the scope of their authority on 
5.13, 5.49, 5.55
behalf of the person (the donor) who made the 
Protection from 
Power of Attorney. 
liability as _ 
6.54–6.55
Court of Protection 
and _ 8.30
Advance decisions 
and _ 9.33
Mental Health Act 
and _ 13.38–13.45
Public Guardian and 
_ 14.7–14.14
Legal help and _ 
15.39–15.42
Accessing personal 
information as _ 
16.9–16.16
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Mental Capacity Act Code of Practice
Best 
Any decisions made, or anything done for a 
Chapter 2 
interests
person who lacks capacity to make specifi c 
(Principle 4)
decisions, must be in the person’s best interests. 
Chapter 5
There are standard minimum steps to follow 
Protection from 
when working out someone’s best interests. 
liability and _ 
These are set out in section 4 of the Act, and in 
6.4–6.18
the non-exhaustive checklist in 5.13. 
Reasonable belief 
and _ 6.32–6.36
Deprivation of liberty 
and _ 6.51–6.53
Acting as an 
attorney and _ 
7.19–7.20, 7.29, 7.53
Court of Protection 
and _ 8.14–8.26
Acting as a deputy 
and _ 8.50–8.52
Advance decisions 
and _ 9.4–9.5
Bournewood 
A name given to some proposed new procedures 
6.53–6.54
provisions
and safeguards for people who lack capacity 
13.53–13.54
to make relevant decisions but who need to be 
deprived of their liberty, in their best interests, 
otherwise than under the Mental Health Act 1983. 
The name refers to a case which was eventually 
decided by the European Court of Human Rights. 
Capacity
The ability to make a decision about a particular 
Chapter 4
matter at the time the decision needs to be 
made. The legal defi nition of a person who lacks 
capacity is set out in section 2 of the Act.
Carer
Someone who provides unpaid care by looking 
Acting as decision-
after a friend or neighbour who needs support 
maker 5.8–5.10
because of sickness, age or disability. In this 
Protection from 
document, the role of the carer is different from 
liability 6.20–6.24
the role of a professional care worker.
Assessing capacity 
as _ 4.44–4.45
Acting with 
reasonable belief 
6.29–6.34
Paying for goods 
and services 
6.56–6.66
Accessing 
information 
16.26–16.32
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Mental Capacity Act Code of Practice
Care worker
Someone employed to provide personal care 
Assessing capacity 
for people who need help because of sickness, 
as _4.38, 4.44–4.45
Key words
age or disability. They could be employed by the 
Protection from 
person themselves, by someone acting on the 
liability 6.20
person’s behalf or by a care agency.
Paying for goods 
Key words and 
and services 
phrases used in 
6.56–6.66
the Code
Acting as an 
attorney 7.10
Acting as a deputy 
8.41
Children Act 
A law relating to children and those with parental 
Chapter 12
1989
responsibility for children. 
Complaints 
A panel of people set up to review and reconsider 
15.28
Review Panel
complaints about health or social care services 
which have not been resolved under the fi rst 
stage of the relevant complaints procedure.
Consultee
A person who is consulted, for example about the 
11.23, 11.28–29, 
involvement in a research project of a person who 
11.44
lacks capacity to consent to their participation in 
the research.
Court of 
The specialist Court for all issues relating to 
Chapter 8
Protection
people who lack capacity to make specifi c 
must always make 
decisions. The Court of Protection is established 
decisions about 
under section 45 of the Act.
these issues 6.18
Decisions about life-
sustaining treatment 
5.33–5.36
LPAs and _ 
7.45–7.49
Advance decisions 
and _ 9.35, 9.54, 
9.67–9.69
Decisions regarding 
children and young 
people 12.3–12.4, 
12.7, 12.10, 
12.23–12.25
Access to legal help 
15.40–15.44
Court of 
Someone who is appointed to report to the Court 
14.10–14.11
Protection 
of Protection on how attorneys or deputies are 
Attorneys and _ 7.71
Visitor
carrying out their duties. Court of Protection 
Deputies and _ 8.71
Visitors are established under section 61 of the 
Act. They can also be directed by the Public 
Guardian to visit donors, attorney and deputies 
under section 58 (1) (d).
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Mental Capacity Act Code of Practice
Criminal 
An Executive Agency of the Home Offi ce which 
Checking healthcare 
Records 
provides access to criminal record information. 
and social care staff 
Bureau (CRB)
Organisations in the public, private and voluntary 
14.29–14.30
sectors can ask for the CRB to check candidates 
Checking IMCAs 
for jobs to see if they have any criminal records 
10.18
which would make them unsuitable for certain 
work, especially that involves children or 
vulnerable adults.
For some jobs, a CRB check is mandatory.
Data 
A law controlling the handling of, and access 
Chapter 16
Protection 
to, personal information, such as medical 
Act 1998
records, fi les held by public bodies and fi nancial 
information held by credit reference agencies.
Decision-
Under the Act, many different people may be 
Chapter 5
maker
required to make decisions or act on behalf of 
Working with IMCAs 
someone who lacks capacity to make decisions 
10.4, 10.21–10.29
for themselves. The person making the decision 
Applying the MHA 
is referred to throughout the Code, as the 
13.3, 13.10, 13.27
‘decision-maker’, and it is the decision-maker’s 
responsibility to work out what would be in the 
best interests of the person who lacks capacity.
Declaration
A kind of order made by the Court of Protection. 
8.13–8.19
For example, a declaration could say whether a 
Advance decisions 
person has or lacks capacity to make a particular 
and _ 9.35
decision, or declaring that a particular act would 
or would not be lawful. The Court’s power to 
make declarations is set out in section 15 of the 
Act.
Deprivation 
Deprivation of liberty is a term used in the 
6.49–6.54
of liberty
European Convention on Human Rights about 
Protection from 
circumstances when a person’s freedom is taken 
liability 6.13–6.14
away. Its meaning in practice is being defi ned 
Attorneys and _ 7.44
through case law.
Mental Health Act 
and _ 13.12, 13.16
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Mental Capacity Act Code of Practice
Deputy
Someone appointed by the Court of Protection 
Chapter 8
with ongoing legal authority as prescribed by the 
Best interests 
Key words
Court to make decisions on behalf of a person 
principle and _ 5.2, 
who lacks capacity to make particular decisions 
5.13, 5.49, 5.55
as set out in Section 16(2) of the Act.
Protection from 
Key words and 
liability as _ 
phrases used in 
6.54–6.55
the Code
Attorneys becoming 
_ 7.56
Advance decisions 
and _ 9.33
IMCAs and _ 
10.70–72
Acting for children 
and young people 
12.4, 12.7
Public Guardian and 
_ 14.15–14.18
Complaints about 
14.19–14.25
Accessing personal 
information as _ 
16.9–16.16
Donor
A person who makes a Lasting Power of Attorney 
Chapter 7
or Enduring Power of Attorney.
Enduring 
A Power of Attorney created under the Enduring 
Chapter 7
Power of 
Powers of Attorney Act 1985 appointing an 
See also LPA
Attorney 
attorney to deal with the donor’s property and 
(EPA)
fi nancial affairs. Existing EPAs will continue to 
operate under Schedule 4 of the Act, which 
replaces the EPA Act 1985.
Family carer
A family member who looks after a relative who 
See carer
needs support because of sickness, age or 
disability. It does not mean a professional care-
worker employed by a disabled person or a care 
assistant in a nursing home, for example. 
Family 
The Division of the High Court that has the 
12.14, 12.23
Division of 
jurisdiction to deal with all matrimonial and civil 
the High 
partnership matters, family disputes, matters 
Court
relating to children and some disputes about 
medical treatment.
Fiduciary 
Anyone acting under the law of agency will have 
_ for attorneys 7.58
duty
this duty. In essence, it means that any decision 
_ for deputies 8.58
taken or act done as an agent (such as an 
attorney or deputy) must not benefi t themselves, 
but must benefi t the person for whom they are 
acting.
285

Mental Capacity Act Code of Practice
Guardianship
Arrangements, made under the Mental Health Act 
13.16–13.21
1983, for a guardian to be appointed for a person 
13.1, 13.25–13.27, 
with mental disorder to help ensure that the 
13.54
person gets the care they need in the community.
Health 
An independent person whose organisation 
15.19, 15.21, 15.31
Service 
investigates complaints about National Health 
Ombudsman
Service (NHS) care or treatment in England 
which have not been resolved through the NHS 
complaints procedure.
Human 
A law largely incorporating into UK law the 
6.49
Rights Act 
substantive rights set out in the European 
16.3
1998
Convention on Human Rights.
Human 
A law to regulate issues relating to whole body 
11.7
Tissue Act 
donation and the taking, storage and use of 
11.38–11.39
2004
human organs and tissue.
Ill treatment
Section 44 of the Act introduces a new offence 
14.23–14.26
of ill treatment of a person who lacks capacity 
by someone who is caring for them, or acting as 
a deputy or attorney for them. That person can 
be guilty of ill treatment if they have deliberately 
ill-treated a person who lacks capacity, or been 
reckless as to whether they were ill-treating the 
person or not. It does not matter whether the 
behaviour was likely to cause, or actually caused, 
harm or damage to the victim’s health.
Independent 
In England, a service to support patients and their 
15.18
Complaints
carers who wish to pursue a complaint about their 
Advocacy 
NHS treatment or care.
Service 
(ICAS)

Independent 
Someone who provides support and 
Chapter 10
Mental
representation for a person who lacks capacity 
Consulting to work 
Capacity 
to make specifi c decisions, where the person has 
out best interests 
Advocate 
no-one else to support them. The IMCA service 
5.51
(IMCA)
is established under section 35 of the Act and the 
Involvement in 
functions of IMCAs are set out in section 36. It is 
changes of residence 
not the same as an ordinary advocacy service.
6.9
Involvement in 
serious medical 
decisions 6.16
MHA and _ 
13.46–13.48 
Information 
An independent authority set up to promote 
16.13
Commis-
access to offi cial information and to protect 
16.18
sioner’s 
personal information. It has powers to ensure 
Offi ce
that the laws about information, such as the Data 
Protection Act 1998, are followed.
286

Mental Capacity Act Code of Practice
Lasting 
A Power of Attorney created under the Act (see 
Chapter 7
Power of 
Section 9(1)) appointing an attorney (or attorneys) 
Best interests 
Key words
Attorney 
to make decisions about the donor’s personal 
principle and _ 5.2, 
(LPA)
welfare (including healthcare) and/or deal with the 
5.13, 5.49, 5.55
donor’s property and affairs.
Protection from 
Key words and 
liability as _ 
phrases used in 
6.54–6.55
the Code
Court of Protection 
and _ 8.30
Advance decisions 
and _ 9.33
Mental Health Act 
and _ 13.38–13.45
Public Guardian and 
_ 14.7–14.14
Legal help and _ 
15.39–15.42
Accessing personal 
information as _ 
16.9–16.16
Life-
Treatment that, in the view of the person providing  Providing or 
sustaining 
healthcare, is necessary to keep a person alive 
stopping _ in best 
treatment
See Section 4(10) of the Act.
interests 5.29–5.36
Advance decisions 
to refuse _ 
9.10–9.11, 9.19–9.20, 
9.24–9.28
Protection from 
liability when 
providing _ 6.16, 
6.55
Attorneys and _ 7.22, 
7.27, 7.29-7.30
Deputies and _ 8.17, 
8.46
Conscientious 
objection to stopping 
_ 9.61–9.63
IMCAs and _ 10.44
Litigation 
A person appointed by the court to conduct 
4.54
friend
legal proceedings on behalf of, and in the name 
10.38
of, someone who lacks capacity to conduct the 
15.39
litigation or to instruct a lawyer themselves.
Local 
In England, an independent organisation that 
15.30–15.32
Government 
investigates complaints about councils and local 
Ombudsman
authorities on most council matters including 
housing, planning, education and social services.
287

Mental Capacity Act Code of Practice
Makaton
A language programme using signs and symbols, 
3.11
for the teaching of communication, language and 
literacy skills for people with communication and 
learning diffi culties.
Mediation
A process for resolving disagreements in which an  15.7–15.13
impartial third party (the mediator) helps people in 
dispute to fi nd a mutually acceptable resolution.
Mental 
See capacity
capacity
Mental 
A law mainly about the compulsory care 
Chapter 13
Health Act 
and treatment of patients with mental health 
Deprivation of liberty 
1983
problems. In particular, it covers detention in 
other than in line with 
hospital for mental health treatment.
_ 6.50–6.53, 7.44
Attorneys and _ 7.27
Advance decisions 
and _9.37
IMCAs and 10.44, 
10.51, 10.56–10.58
Children and young 
people and _ 12.6, 
12.21
Complaints regarding 
_ 15.19
Mental 
An independent judicial body with powers to 
13.31
Health 
direct the discharge of patients who are detained 
13.42
Review 
under the Mental Health Act 1983.
Tribunal
NHS 
A Special Health Authority (part of the NHS), 
15.22
Litigation 
responsible for handling negligence claims made 
Authority
against NHS bodies in England.
Offi ce of 
The Public Guardian is an offi cer established 
14.8–14.22
the Public 
under Section 57 of the Act. The Public Guardian 
Registering LPAs 
Guardian 
will be supported by the Offi ce of the Public 
with _ 7.14–7.17
(OPG)
Guardian, which will supervise deputies, keep a 
Supervision of 
register of deputies, Lasting Powers of Attorney 
attorneys by _ 
and Enduring Powers of Attorney, check on 
7.69–7.74
what attorneys are doing, and investigate any 
Registering EPAs 
complaints about attorneys or deputies. The OPG 
with _ 7.78
replaces the Public Guardianship Offi ce (PGO) 
Guidance for EPAs _ 
that has been in existence for many years.
7.79
Guidance for 
receivers_ 8.5
Panel of deputies of 
_ 8.35
Supervision of 
deputies by _ 
8.69–8.77
288

Mental Capacity Act Code of Practice
Offi cial 
Provides legal services for vulnerable persons, or 
Helping with formal 
Solicitor
in the interests of achieving justice. The Offi cial 
assessment of 
Key words
Solicitor represents adults who lack capacity to 
capacity 4.54
conduct litigation in county court or High Court 
Acting in applications 
proceedings in England and Wales, and in the 
to the Court of 
Key words and 
Court of Protection.
Protection 8.10
phrases used in 
Acting as litigation 
the Code
friend 10.38, 15.39
Patient 
In England, a service providing information, 
15.15–15.17
Advice and 
advice and support to help NHS patients, their 
Liaison 
families and carers. PALS act on behalf of service 
Service 
users when handling patient and family concerns 
(PALS)
and can liaise with staff, managers and, where 
appropriate, other relevant organisations, to fi nd 
solutions.
Permanent 
A condition caused by catastrophic brain damage 
6.18
vegetative 
whereby patients in PVS have a permanent 
8.18
state (PVS)
and irreversible lack of awareness of their 
surroundings and no ability to interact at any level 
with those around them.
Personal 
Personal welfare decisions are any decisions 
_ LPAs 7.21–7.31
welfare 
about person’s healthcare, where they live, what 
_ deputies 8.38–8.39
clothes they wear, what they eat and anything 
Advance decisions 
needed for their general care and well-being. 
about _ 9.4, 9.35
Attorneys and deputies can be appointed to make  Role of High Court 
decisions about personal welfare on behalf of a 
in decisions about _ 
person who lacks capacity. Many acts of care are 
15.44
to do with personal welfare. 
Property and 
Any possessions owned by a person (such as 
_ LPAs 7.32–7.42
affairs
a house or fl at, jewellery or other possessions), 
_ deputies 8.34–8.37
the money they have in income, savings or 
Restrictions on _ LPA 
investments and any expenditure. Attorneys and 
7.56
deputies can be appointed to make decisions 
Duties of _ attorney 
about property and affairs on behalf of a person 
7.58, 7.67–7.68
who lacks capacity.
_ EPAs 7.76–7.77
OPG panel of _ 
deputies 8.35
Duties of _ deputy 
8.56, 8.67–8.68
_ of children and 
young people 
12.3–12.4, 12.7
Protection 
Legal protection, granted to anyone who has 
Chapter 6
from liability
acted or made decisions in line with the Act’s 
principles. 
289

Mental Capacity Act Code of Practice
Protection of 
A register of individuals who have abused, 
14.31
Vulnerable 
neglected or otherwise harmed vulnerable adults 
Adults 
in their care or placed vulnerable adults at risk 
(POVA) list
of harm. Providers of care must not offer such 
individuals employment in care positions.
Public 
An independent body that investigates complaints  15.20
Services 
about local government and NHS organisations 
15.30–15.32
Ombudsman 
in Wales, and the National Assembly for Wales, 
for Wales
concerning matters such as housing, planning, 
education, social services and health services.
Receiver
Someone appointed by the former Court of 
8.5
Protection to manage the property and affairs of 
8.35
a person lacking capacity to manage their own 
affairs. Existing receivers continue as deputies 
with legal authority to deal with the person’s 
property and affairs.
Restraint
See Section 6(4) of the Act. The use or threat 
6.39–6.44, 6.47–53
of force to help do an act which the person 
Use of _ in 
resists, or the restriction of the person’s liberty of 
moves between 
movement, whether or not they resist. Restraint 
accommodation 6.11
may only be used where it is necessary to protect 
Use of _ in 
the person from harm and is proportionate to the 
healthcare and 
risk of harm.
treatment decisions 
6.15
Attorneys and _ 
7.43-7.44
Deputies and _ 8.46
MHA and _ 13.5
Statutory 
The fi ve key principles are set out in Section 1 
Chapter 2
principles
of the Act. They are designed to emphasise the 
fundamental concepts and core values of the Act 
and to provide a benchmark to guide decision-
makers, professionals and carers acting under the 
Act’s provisions. The principles generally apply to 
all actions and decisions taken under the Act.
Two-stage 
Using sections 2 and 3 of the Act to assess 
4.10–4.13
test of 
whether or not a person has capacity to make a 
Protection from 
capacity
decision for themselves at that time. 
liability 6.27
Applying _ to 
advance decisions 
9.39
290

Mental Capacity Act Code of Practice
Wilful neglect
An intentional or deliberate omission or failure 
14.23–14.26
to carry out an act of care by someone who has 
Key words
care of a person who lacks (or whom the person 
reasonably believes lacks) capacity to care for 
themselves. Section 44 introduces a new offence 
Key words and 
of wilful neglect of a person who lacks capacity.
phrases used in 
the Code
Written 
Written statements the person might have made 
5.34
statements 
before losing capacity about their wishes and 
5.37
of wishes 
feelings regarding issues such as the type of 
5.42–5.44
and feelings
medical treatment they would want in the case 
of future illness, where they would prefer to live, 
or how they wish to be cared for. They should 
be used to help fi nd out what someone’s wishes 
and feelings might be, as part of working out their 
best interests. They are not the same as advance 
decisions to refuse treatment and are not binding.
291

Annex A
The following list provides contact details for some organisations that provide 
information, guidance or materials related to the Code of Practice and the 
Mental Capacity Act. The list is not exhaustive: many other organisations may 
also produce their own materials.
British Banking Association
Provides guidance for bank staff on ‘Banking for mentally incapacitated and 
learning disabled customers’.
Available from www.bba.org.uk/bba/jsp/polopoly.jsp?d=146&a=5757, price 
£10 (members) /£12 (non-members). Not inclusive of VAT.
web:  
www.bba.org.uk
telephone:  020 7216 8800
British Medical Association
Co-authors (with the Law Society) of Assessment of Mental Capacity: 
Guidance for Doctors and Lawyers
 (Second edition) (London: BMJ Books, 
2004). www.bma.org.uk/ap.nsf/Content/Assessmentmental?OpenDocument&
Highlight=2,mental, capacity
Available from BMJ Books (www.bmjbookshop.com), price £20.99
web:  
www.bma.org.uk
telephone:  020 7387 4499
British Psychological Society
Publishers of Guidelines on assessing capacity – professional guidance 
available online to members.
web:  
www.bps.org.uk
telephone:  (0)116 254 9568
Commission for Social Care Inspection
The Commission for Social Care Inspection (CSCI) registers, inspects and 
reports on social care services in England.
web:  
www.csci.org.uk
telephone:  0845 015 0120 / 0191 233 3323
textphone:  0845 015 2255 / 0191 233 3588
292

Mental Capacity Act Code of Practice
Community Legal Services Direct
Provides free legal information to people living in England and Wales to help 
Annex A
them deal with legal problems.
web:  
www.clsdirect.org.uk
telephone (helpline): 0845 345 4 345
Criminal Records Bureau (CRB)
The CRB runs criminal records checks on people who apply for jobs working 
with children and vulnerable adults.
web:  
www.crb.org.uk
telephone:  0870 90 90 811
Department for Constitutional Affairs
The government department with responsibility for the Mental Capacity Act 
and the Code of Practice. Also publishes guidance for specifi c audiences 
www.dca.gov.uk/legal-policy/mental-capacity/guidance.htm
Department of Health
Publishes guidance for healthcare and social care staff in England. Key 
publications referenced in the Code include:
•  on using restraint with people with learning disabilities and autistic 
spectrum disorder, see Guidance for restrictive physical interventions 
www.dh.gov.uk/assetRoot/04/06/84/61/04068461.pdf
•  on adult protection procedures, see No secrets: Guidance on 
developing and implementing multi-agency policies and procedures 
to protect vulnerable adults from abuse
 
www.dh.gov.uk/assetRoot/04/07/45/44/04074544.pdf
•  on consent to examination and treatment, including advance 
decisions to refuse treatment www.dh/gov.uk/consent
•  on the proposed Bournewood safeguards, a draft illustrative Code of 
Practice www.dh.gov.uk/assetRoot/04/14/17/64/04141764.pdf
•  on IMCAs and the IMCA pilots www.dh.gov.uk/imca
DH also is responsible for the Mental Health Act 1983 Code of Practice (TSO 
1999) www.dh.gov.uk/assetRoot/04/07/49/61/04074961.pdf
Family Mediation Helpline
Provides general information on family mediation and contact details for 
mediation services in your local area.
web:  
www.familymediationhelpline.co.uk
telephone:  0845 60 26 627
293

Mental Capacity Act Code of Practice
Healthcare Commission
The health watchdog in England, undertaking reviews and investigations into 
the provision of NHS and private healthcare services.
web
   www.healthcarecommission.org.uk
telephone helpline: 0845 
601 
3012
switchboard: 
 
020 7448 9200 
Healthcare Inspectorate for Wales
Undertakes reviews and investigations into the provision of NHS funded care, 
either by or for Welsh NHS organisations.
web:  
www.hiw.org.uk
email:  
xxx@xxxxx.xxx.xxx.xx
telephone:  029 2092 8850
Housing Ombudsman Service
The Housing Ombudsman Service considers complaints against member 
organisations, and deals with other housing disputes.
web:  
www.ihos.org.uk
email:  
xxxx@xxxxxxxxxxxxxxxxx.xxx.xx
telephone:  020 7421 3800
Information Commissioner’s Offi ce
The Information Commissioner’s Offi ce is the UK’s independent authority 
set up to promote access to offi cial information and to protect personal 
information.
web
   www.ico.gov.uk
telephone helpline
08456 30 60 60
Legal Services Commission
Looks after legal aid in England and Wales, and provides information, advice 
and legal representation.
web:  
www.legalservices.gov.uk
See also Community Legal Services Direct.
Local Government Ombudsman
The Local Government Ombudsmen investigate complaints about councils 
and certain other bodies.
web:  
www.lgo.org.uk
telephone:  0845 602 1983
294

Mental Capacity Act Code of Practice
National Mediation Helpline
Provides access to a simple, low cost method of resolving a wide range of 
Annex A
disputes.
The National Mediation Helpline is operated on behalf of the Department for 
Constitutional Affairs (DCA) in conjunction with the Civil Mediation Council 
(CMC).
web:  
www.nationalmediationhelpline.com
telephone:  0845 60 30 809
Offi ce of the Public Guardian
The new Public Guardian is established under the Act and will be supported 
by the Offi ce of the Public Guardian, which will replace the current Public 
Guardianship Offi ce (PGO). The OPG will be an executive agency of the 
Department for Constitutional Affairs. Amongst its other roles, it provides 
forms for LPAs and EPAs.
web:  
 
From October 2007, a new website will be created at 
www.publicguardian.gov.uk
Offi cial Solicitor
Provides legal services for vulnerable people and is able to represent people 
who lack capacity and act as a litigation friend.
web:  
www.offi cialsolicitor.gov.uk
telephone:  020 7911 7127
Patient Advice and Liaison Service (PALS)
Provides information about the NHS and help resolve concerns or problems 
with the NHS, including support when making complaints.
web:  
www.pals.nhs.uk
 
 
 The site includes contact details for local PALS offi ces around 
the country.
Patient Information Advisory Group
Considers applications on behalf of the Secretary of State to allow the 
common law duty of confi dentiality to be aside.
web:  
www.advisorybodies.doh.gov.uk/PIAG
Public Service Ombudsman for Wales
Investigates complaints about local authorities and NHS organisations in 
Wales, and about the National Assembly Government for Wales.
web:  
www.ombudsman-wales.org.uk
telephone:  01656 641 150
295

Mental Capacity Act Code of Practice
Welsh Assembly Government
Produces key pieces of guidance for healthcare and social care staff, 
including:
•  In safe hands – Implementing Adult Protection Procedures in 
Wales (July 2000) http://new.wales.gov.uk/about/departments/
dhss/publications/social_services_publications/reports/
insafehands?lang=en
•  Framework for restrictive physical intervention policy and practice 
(available at www.childrenfi rst.wales.gov.uk/content/framework/ 
phys-int-e.pdf)
296













Mental Capacity Act 2005
Code of Practice
Copies of this publication can be downloaded from
www.publicguardian.gov.uk
Hard copies of this publication are available from TSO
For more information on the Mental Capacity Act contact the 
Office of the Public Guardian:
Mental Capacity Act 2005
9am – 5pm, Mon – Fri
Telephone: 
0845 330 2900 (local call rate) 
or 
+44 207 664 7000 (for callers outside UK)
Code of Practice
Text Phone:  020 7664 7755 
Fax: 
020 7664 7705 (UK callers) 
Email: xxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx.xxx.xx
Website: www.publicguardian.gov.uk 
Post: 
Office of the Public Guardian 
PO Box 15118
Birmingham
B16 6GX
£15
www.tso.co.uk

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