39.3 Best Interests Decisions and Lasting Power of Attorney

4. Best Interests Decision-Making Framework

When a patient aged 16 or over is determined to lack capacity under the Two-Stage Functional Test, the clinician must make the clinical decision on their behalf following the statutory Best Interests Framework under Section 4 of the MCA.

Section 4 Best Interests Checklist

The treating clinician must:

1. Avoid Discrimination: Not make assumptions based merely on the patient's age, appearance, condition, or behavior.
2. Consider All Relevant Circumstances: Identify all factors the incapacitated person would consider if they were able.
3. Assess Likelihood of Regaining Capacity: Consider whether the patient will regain capacity in the near future (e.g., recovery from delirium or sedation). If the treatment is non-urgent, can it be safely postponed until capacity returns?
4. Encourage Participation: Involve the incapacitated person as much as possible in the decision-making process.
5. Identify Past and Present Wishes, Feelings, and Values: Review any previously expressed views, written advance statements, cultural beliefs, or religious convictions.
6. Consult Relevant Persons: Seek the views of:
   • Anyone named by the person as someone to consult.
   • Family members, primary carers, or close friends.
   • Any formally appointed attorney or deputy.

Legal Instruments and Decision-Makers

Decision-Making Authority for Incapacitated Adults
  │
  ├── Advance Decision to Refuse Treatment (ADRT / "Living Will")
  │     ├── Legally binding refusal of specific medical/dental procedures made when competent
  │     └── If life-sustaining, must be in writing, signed, witnessed, and state "even if life is at risk"
  │
  ├── Lasting Power of Attorney (LPA)
  │     ├── LPA for Property and Financial Affairs ──> NO legal power over healthcare decisions
  │     └── LPA for Health and Welfare ──────────────> Legal authority to consent/refuse medical/dental care
  │                                                    (Only valid once registered with OPG and donor lacks capacity)
  │
  ├── Court-Appointed Deputy (Health & Welfare)
  │     └── Appointed by Court of Protection when no prior LPA exists
  │
  └── Independent Mental Capacity Advocate (IMCA)
        └── Mandatory statutory referral when an "unbefriended" individual lacking capacity faces
            "Serious Medical Treatment" and has no family, friend, or LPA to represent them

Critical Distinctions in Lasting Power of Attorney (LPA)

• Financial LPA vs. Health and Welfare LPA: In clinical practice, families frequently produce an LPA document attempting to make medical decisions. Clinicians must carefully check the document header: an LPA for Property and Financial Affairs conveys ZERO legal power to make decisions about healthcare or dental treatment. Only a registered LPA for Health and Welfare grants decision-making authority for medical care.
• Operational Threshold: An LPA for Health and Welfare takes effect only when the patient lacks capacity. If the patient still has capacity, the attorney has no authority to override the patient's own decision.

Independent Mental Capacity Advocate (IMCA)

Under Section 37 of the MCA, NHS bodies and local authorities have a statutory duty to instruct an IMCA when:

1. An adult aged 16+ lacks mental capacity for a specific decision.
2. The proposed intervention involves "Serious Medical Treatment" (defined as treatment involving significant serious consequences, high risk of death, major pain, extensive surgical intervention, or treatment under general anesthesia).
3. The patient is "unbefriended" — having no family members, friends, or LPA whom it is appropriate to consult.

Who Can and Cannot Consent for an Adult

The single most examined misconception among overseas-qualified candidates is that a relative can consent on behalf of an incapacitated adult. In England and Wales no one can give or withhold consent on behalf of an adult who lacks capacity unless they hold specific legal authority. The people who do hold that authority are an attorney appointed under a registered health and welfare lasting power of attorney, a court-appointed deputy with relevant powers, or the Court of Protection itself. Everyone else — spouse, adult children, carers, care home staff — must be consulted as part of the best interests process because of their knowledge of the person's wishes, values and beliefs, but they do not consent.

Distinguishing the Two Types of Lasting Power of Attorney

A property and financial affairs LPA gives no authority whatsoever over medical or dental treatment; it can be used while the donor still has capacity if the donor permits. A health and welfare LPA can only be used once the donor lacks capacity for the decision in question, and it must be registered with the Office of the Public Guardian to be effective. The authority to refuse life-sustaining treatment exists only where the LPA document expressly grants it. The examinable practical step is to ask to see the registered document and to record that you have verified it, rather than accepting a verbal claim to hold power of attorney.

Making and Recording the Decision

Section 4 requires the decision-maker — in a dental context usually the treating dentist — to consider whether the person is likely to regain capacity and whether the decision can wait; to encourage the person's participation as far as possible; not to be motivated by a desire to bring about death; to consider the person's past and present wishes, feelings, beliefs and values, including any written statement; and to consult those engaged in caring for the person, any attorney or deputy, and anyone named by the person. Where the decision is serious medical treatment and the person has no family or friends to consult, an Independent Mental Capacity Advocate must be instructed. The decision, the consultation and the reasoning must be recorded in the notes — an undocumented best interests decision is, for practical and legal purposes, one that did not happen.