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Lack of capacity

No one can legally give consent on behalf of another adult who has capacity. However a person who cannot understand, retain, process the information about the decision or communicate what they're consenting to may lack capacity to make certain, specific decisions.

But doctors may treat an adult without consent if they lack capacity, provided the treatment is necessary and in the person's best interests following consultation with someone who knows the person best.

Lasting Power of Attorney

A Lasting Power of Attorney (LPA) allows a person to give someone they trust the legal power to make decisions on their behalf in case the person becomes unable to make the decisions themselves.

There are two different types of LPA:

  • An LPA for Property and Financial Affairs covers decisions about money and property.
  • An LPA for Health and Welfare covers decisions about health and personal welfare

If a LPA for Health and Welfare is in place, the attorney can make decisions about anything to do with health and personal welfare. This includes decisions about:

  • Serious medical treatment
  • Where the person who lacks capacity is cared for
  • The type of care they receive
  • Life-sustaining treatment (if authorised in the LPA)

It is important that the hospital are notified when a LPA for Health and Welfare is in place and a copy is shared for verification.

Supporting a person who lacks capacity

You may want to ask the following questions on behalf of the person you care for:

  • What will the treatment involve?
  • How will the treatment improve the person's health?
  • What are the benefits of this treatment rather than others (if there are any)?
  • How good are the chances of success?
  • Are there any alternatives?
  • What are the risks, if any, and how serious could they be?
  • What happens if the person does not have treatment?

Read more about the Mental Capacity Act and supporting someone who lacks capacity to consent making decisions on behalf of someone.