Consent and the Mental Capacity Act

MDU medico-legal advisor Dr Andrea Wallington explains how the Act affects GPs

When the Mental Capacity Act 2005 (MCA) comes into force next month, GPs in England and Wales will need to consider involving more people in decision-making for patients who cannot make decisions and lack capacity now, or who may do so in the future. Consequently, GPs will need to know when they can and cannot disclose confidential information.

The key areas of the Act affecting GPs are:

  1. The introduction of independent mental capacity advocates (IMCAs).
  2. The ability for adult patients to make a lasting power of attorney (LPA).
  3. The establishment of a new Court of Protection.
  4. The introduction of Court-appointed deputies. GPs will need to be aware of people appointed to these new roles and when to involve them in decision-making about patients who lack capacity.

Appointing an IMCA
The IMCA role became operational earlier this year, and is relevant for a person who lacks capacity and has no family or friends whom it would be appropriate to consult, nor do they have an appointed attorney under a lasting power of attorney.

For these people, in certain situations - such as when there is a decision to be made about an NHS body providing serious medical treatment - the relevant NHS body is required to instruct and consult an IMCA.

GPs need to be aware of the duty to appoint an IMCA or to consult with an existing IMCA when it is appropriate.

Lasting powers of attorney
Lasting powers of attorney replace enduring powers of attorney. There will be two types of LPA.

A property and affairs LPA allows an attorney to make decisions about financial matters and, unlike a personal welfare LPA, can be used when the person still has capacity, unless otherwise specified.

A personal welfare LPA allows an attorney to make decisions about both health and personal welfare. This personal welfare attorney, however, cannot consent to or refuse treatment when the person has capacity to make the decision themselves.

The patient can also add restrictions or conditions on areas where they do not wish the attorney to act.

Even if an LPA includes all healthcare decisions, the attorney has no decision-making power to refuse or authorise treatment in certain situations, such as if the patient has made an advance directive to refuse treatment proposed after making the LPA.

In addition, the attorney cannot insist on treatment that a doctor does not believe is in the patient's best interest.

GPs who are aware that a patient has made an LPA will need to check whether it covers financial or personal welfare matters and that it applies to the situation in question.

The LPA will not be effective if the patient has capacity in relation to the welfare issue in question.

Therefore, if an attorney requests disclosure of a patient's records, the GP must check that a personal welfare LPA is in force, the detail of its provisions and confirm that the patient lacks capacity before complying. It may not be necessary to release the entire record but just the relevant parts to the attorney.

To understand the extent of the attorney's power fully, GPs should read the LPA, which will be registered at the Office of the Public Guardian. Only those over 18 can appoint someone to act as a LPA.

Court of Protection
This new court will have the power to make a declaration about whether an adult (in limited cases, a child) has or lacks capacity, and to appoint a deputy to make a decision on behalf of a person lacking capacity.

Disputes over a person's capacity, or what treatment is in their best interest can be referred here.

GP members with concerns about treating patients who lack capacity are advised to contact the MDU for advice

Principles of the Mental Capacity Act

  • Individuals are presumed to have capacity.
  • All practical steps must be taken to support someone in decision-making.
  • A person is not to be treated as lacking capacity merely through making an unwise decision.
  • An action taken on behalf of a person must be in their best interests.
  • Regard must be had as to whether an act or decision is the least restrictive of a person's rights and freedoms.
  • For more information on the Mental Capacity Act, including a code of practice and a guide for healthcare workers go to

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