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Frequently asked questions
Can family give consent for someone who can’t make a decision themselves?
The doctor wants the person’s next of kin to sign the consent form. Is this right?
What are Independent Mental Capacity Advocates (IMCAs)?
When are Independent Mental Capacity Advocates (IMCAs) involved?
What should happen before deciding a person should not be resuscitated (DNAR)?
What should happen if people can’t agree on whether a person can make a decision themselves?
What should happen if people can’t agree on what is in a person’s best interests?
Can family give consent for someone who can’t make a decision themselves?
For people 16 or over, who are unable to make a decision themselves no one can give consent on their behalf. The only exceptions are if they have made a Lasting Power of Attorney or have a Deputy appointed by the Court of Protection with power to make the specific decision. Without an Attorney or Deputy the decision must be made in the person’s best interests. Find out more about Attorney’s or Deputies.
The doctor wants the person’s next of kin to sign the consent form. Is this right?
Unless a person’s next of kin has been appointed as an attorney or deputy with power to make medical decisions, the answer is no. For people 16 or over, who lack capacity to make a decision about medical treatment, the doctor must decide what is in their best interests. They should involve family and paid carers who know the person well, but it is the doctor’s responsibility to make the decision.
What are Independent Mental Capacity Advocates (IMCAs)?
IMCAs are a special kind of advocate and were brought in as a part of the Mental Capacity Act. Their job is to make sure that people who may lack capacity to make important decisions are represented. Mainly they support people who have little or no contact with family or friends. They have the right to meet the person and to see relevant health and social care records. They must write a report which has to be considered when decisions are made. You can learn more about the role of the IMCA in the SocialCareTV film “ Peter’s IMCA”.
When are Independent Mental Capacity Advocates (IMCAs) involved?
There are times when IMCAs must be involved and times when they can be involved.
IMCAs must be involved if a decision is being made about where someone is going to live or stay if the person lacks capacity to make this decision and they don’t have any family or friends who can represent them. This includes moves to care homes which are likely to be over eight weeks, or stays in hospital for over four weeks.
IMCAs must be involved in serious medical treatment decisions if the person can’t make the decision themselves and they don’t have family or friends who can represent them.
IMCAs can also be involved in care reviews where a person doesn’t have family or friends. They can also support and represent people where there are adult protection concerns regardless of the level of contact they have with family or friends.
IMCAs also support people as part of the Deprivation of Liberty Safeguards.
What should happen before deciding a person should not be resuscitated (DNAR)?
If a person is able to make their own decision it is their choice. This is called an advanced decision to refuse treatment. It would have to be written down being clear that this would put their life at risk, signed by them and witnessed.
If the person has been assessed as lacking capacity to make the decision themselves a doctor must decide if attempting resuscitation is in the person’s best interests. They should try to find out what the person’s views are and consult with family, friends and carers who know the person. For those people who don’t have family and friends who can be involved in the decision, an IMCA may be required.
What should happen if people can’t agree on whether a person can make a decision themselves?
If can sometime be difficult to decide if a person understands enough to be able to make a decision themselves. Sometimes people have different views. It can sometimes help to ask someone new to do a capacity assessment, for example a speech and language therapist, social work, psychologist or doctor.
Where differences can’t be resolved, for serious issues the Court of Protection can be asked to make a decision about a person’s capacity. The Code of Practice says that local authorities or health trusts should arrange for this to happen.
What should happen if people can’t agree on what is in a person’s best interests?
Often best interests meetings can be helpful by getting together the people who know the person well with the people who need to make the decision. This can be a good way to make sure all views are heard.
If differences can’t be resolved it might be necessary to make a complaint against the body making the decision. For serious disputes the local authority or NHS trust should make an application to the Court of Protection to decide on the person’s best interests.