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Chapter 2 of 11 · Ethics, Law & Safeguarding
Best interests, advance decisions, LPAs and deputies
Once someone lacks capacity, the question becomes: who decides, and on what basis? Four different answers, a strict order of priority, and a handful of exceptions the AKT loves.
A patient lacks capacity for a decision. Before you reach for “best interests”, check whether someone else has already made the decision, or has the legal power to make it. There is a strict order.
| Order | Who decides | Scope and limits |
|---|---|---|
| 1 | A valid and applicable advance decision to refuse treatment (ADRT) | The patient decided in advance. Binding on you, with the same force as a contemporaneous capacitous refusal. Refusals only — you cannot demand treatment in advance. A later LPA covering the same treatment overrides an earlier ADRT, so check the dates. |
| 2 | A registered health & welfare LPA attorney | Can consent and refuse. Can only refuse life-sustaining treatment if the instrument expressly says so (s11(8)). |
| 3 | A court-appointed personal welfare deputy | Rare. Can never refuse life-sustaining treatment (s20(5)). |
| 4 | The decision-maker — usually the treating clinician | Acts in the person’s best interests under s4, protected by s5. |
“Next of kin” appears nowhere on this list. In England and Wales a spouse, parent or adult child has no legal power to consent or refuse on behalf of an adult unless they hold a registered health and welfare LPA or a deputyship. They must be consulted — they do not sign.
The best-interests checklist (s4)
Section 4 does not tell you what the answer is. It tells you what you must take into account. Work through it and record that you did.
- Do not decide merely on the basis of age, appearance, condition or behaviour.
- Consider whether the person is likely to regain capacity, and if so whether the decision can wait.
- Permit and encourage participation as far as possible.
- Consider their past and present wishes and feelings (especially any written statement made when they had capacity), their beliefs and values, and any other factors they would have considered.
- Consult, where practicable: anyone the person named, carers, family, attorneys and deputies.
- For life-sustaining treatment, you must not be motivated by a desire to bring about death (s4(5)).
Best interests is not substituted judgement, and it is not the medical answer either. It is a holistic balance in which the person’s own wishes carry great weight but are not automatically decisive. If you only ever ask “what would the patient have wanted?” you have applied the wrong test — and if you only ask “what is clinically best?” you have applied a worse one.
An 82-year-old man with advanced dementia is admitted with aspiration pneumonia. His daughter says she has power of attorney and refuses IV antibiotics. She produces a registered Lasting Power of Attorney for property and financial affairs.
What weight does her refusal carry?
A property and financial affairs LPA gives no authority over healthcare whatsoever. She cannot consent to or refuse treatment on his behalf.
Her view is important evidence of his past wishes, beliefs and values, and s4(7) requires you to consult her. But the decision is yours as the treating clinician, made in his best interests.
If she had a health and welfare LPA, registered with the Office of the Public Guardian and in force because he now lacks capacity, her refusal would bind you — unless the treatment were life-sustaining and the instrument lacked the express provision required by s11(8).
The Court of Protection is for genuinely finely balanced or disputed cases. Everyday best-interests decisions are made by the clinician. If the disagreement cannot be resolved, a second opinion, a best-interests meeting and mediation come long before a court application.
There is no such thing as consent by proxy from a relative in England and Wales. Recording “daughter consented” on a form is legally meaningless and clinically misleading.
Pick an option to see the answer.
Advance decisions to refuse treatment
An ADRT is made by a person aged 18 or over with capacity, and takes effect when they later lose capacity. It refuses specified treatment in specified circumstances.
An ADRT binds you only if it is both valid and applicable.
Not valid if the person: withdrew it while they had capacity; later made an LPA giving an attorney authority over that same treatment; or did something clearly inconsistent with it.
Not applicable if: the person still has capacity; the treatment is not the treatment specified; the specified circumstances are absent; or there are reasonable grounds to believe circumstances now exist which the person did not anticipate and which would have affected their decision.
The life-sustaining treatment formalities
For an ADRT refusing life-sustaining treatment, four extra requirements apply. All four are needed:
- It must be in writing
- Signed by the person, or by another in their presence and at their direction
- Witnessed — the person signs, or acknowledges their signature, in the witness’s presence, and the witness signs in theirs
- It must contain an express statement that it applies even if life is at risk
For anything other than life-sustaining treatment an ADRT can be entirely verbal — the words “I would never want another blood transfusion”, said with capacity and recorded, can bind you.
Chronology decides who wins. A later LPA overrides an earlier ADRT. An ADRT made after the LPA overrides the attorney. Check the dates before you check anything else.
A 45-year-old woman with a haematemesis is unconscious. Her partner produces a signed, witnessed, written document dated three years ago refusing all blood products “even if my life is at risk”. She is a Jehovah’s Witness. Her partner adds that she stopped attending Kingdom Hall about a year ago.
Do you transfuse?
The document meets all four formalities, so on its face it binds you. But the partner has raised a question of validity: has she done something clearly inconsistent with it? Ceasing to attend meetings is suggestive but not decisive — people leave congregations for many reasons and retain the belief.
You must make a reasonable enquiry in the time available. If genuine doubt remains and the situation is emergent, treat — and apply to the Court of Protection if there is time.
Section 26 protects you in both directions: you do not incur liability for giving treatment unless you are satisfied that a valid and applicable ADRT exists, and you do not incur liability for withholding it if you reasonably believe one does. Where doubt is genuine and the clinical situation is emergent, preserving life while the question is resolved is lawful.
What you must not do is dismiss the document because you disagree with it, or without making any enquiry at all.
An ADRT does not expire. Age may be relevant evidence when weighing validity, but there is no statutory shelf life.
A partner has no decision-making power without a health and welfare LPA. He is a vital source of evidence about her wishes and about validity — nothing more.
This one is deliberately uncomfortable. Pick the answer you would defend at an inquest.
Lasting Powers of Attorney
| Health & Welfare LPA | Property & Financial Affairs LPA | |
|---|---|---|
| When usable | Only once the donor lacks capacity | As soon as it is registered, with the donor’s permission — so it can be used while they still have capacity |
| Covers | Medical treatment, care, where to live, day-to-day care decisions | Bank accounts, bills, property, investments |
| Life-sustaining treatment | Only if the instrument contains express provision (s11(8)) | Never — out of scope |
| Must be registered | Yes, with the Office of the Public Guardian | Yes, with the OPG |
Enduring Powers of Attorney (EPAs) could not be made on or after 1 October 2007, but existing ones remain valid. They cover property and financial affairs only — never health or welfare. An EPA attorney has no say in a DNACPR decision.
Deputies and the Court of Protection
Where there is no LPA and ongoing decisions are needed, the Court of Protection can appoint a deputy. Property and affairs deputies are common; personal welfare deputies are rare, because the court prefers to decide one-off welfare questions itself. The hard limit: a deputy can never refuse consent to life-sustaining treatment.
IMCAs
An Independent Mental Capacity Advocate must be instructed where a person aged 16 or over lacks capacity and there is no one appropriate to consult other than paid staff, for:
- Serious medical treatment
- A move to hospital likely to last more than 28 days
- A move to a care home or other accommodation likely to last more than 8 weeks
Urgent decisions are excepted. The service may also be used, at discretion, for care reviews and adult protection cases — and in safeguarding cases the “no one to consult” criterion does not apply.
Self-testA patient with a learning disability who lacks capacity needs a general anaesthetic for dental clearance. She lives in a supported living service; her only regular visitors are her paid support workers. What must happen before the procedure?
This is serious medical treatment in a person with no one appropriate to consult other than paid staff, so an IMCA must be instructed — it is a statutory duty, not a courtesy. The IMCA does not decide; they represent her, gather her views and can challenge the decision.
Alongside that: confirm the capacity assessment is decision-specific, hold a documented best-interests discussion, and consider the least restrictive option (could treatment be staged under sedation?).
Self-testWhat is the difference between a written statement of wishes and an advance decision to refuse treatment?
A written statement of wishes and feelings is evidence — a powerful and legally required input into the s4 best-interests checklist, but not binding. It can express preferences for treatment as well as against.
An ADRT is a decision — a refusal that, if valid and applicable, binds you absolutely. It can only refuse.
The classic exam framing: “I would not want to be resuscitated if I had a stroke” written in a care plan is a statement of wishes; the same words in a signed, witnessed document with the life-at-risk declaration is an ADRT.
The Powers of Attorney Act 2023 will move LPA-making to a digital process, but the key provision has still not been commenced — paper execution remains the law. The Office of the Public Guardian’s online “Use an LPA” service, which lets an attorney prove a registered LPA, is a separate thing and is live.
Written and checked by NHS GPs. Last reviewed 24 August 2026. UK law and guidance change — always follow current local policy and your defence organisation’s advice in a real case.
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