Making decisions on behalf of adults lacking capacity

Dental professionals need to be aware of a number of factors before making decisions on behalf of adults lacking capacity.

Best interests

Any treatment or decision must be made in the patient's best interests. In determining best interests, you should consider all the relevant circumstances, including:

  • the patient's past and present wishes and feelings, in particular any relevant written statement made when they had capacity
  • the beliefs and values likely to influence a decision if the patient had capacity
  • other factors they would be likely to consider if they were able to do so.

Keep in mind that the concept of best interests extends beyond clinical issues - it also encompasses the patient's values and preferences when competent, their psychological health, wellbeing, quality of life, relationship with family or other carers, spiritual and religious welfare and their financial interests.

  • If possible, take into account the views of those named by the patient as someone to be consulted as to their best interests (see below for more information).
  • If no one has been named, these matters should be considered with the patient's close relative and/or their friend or carer.
  • A patient's best interests should not be determined based on their age, appearance, condition or behaviour.
  • Always keep a record in the patient's clinical record of how the patient's best interests were established.
  • Before a treatment starts, or a decision is made, you should consider whether the purpose of the decision or treatment can be achieved just as effectively in a way which is less restrictive of the patient's rights and freedom of action.

Advance decisions and LPAs in England and Wales

A patient who now lacks capacity may have made an advance decision at a time when they had capacity, to refuse or limit treatment. If you are aware of such a decision and you can establish that it is valid and applies to the treatment proposed, you must follow it.

In England and Wales, patients can appoint an attorney under a Lasting Power of Attorney (LPA) for health and welfare who may authorise dental decisions on their behalf.

LPAs can't give attorneys the power to demand specific forms of dental treatment if dental professionals don't believe they are necessary or appropriate to the patient's condition.

Where the patient has no one close to represent them, you might need to seek the views of an Independent Mental Capacity Advocate (IMCA) in deciding the patient's best interests in certain circumstances (likely to be rare) where 'serious medical treatment' is proposed. These circumstances include situations where there is a fine balance between the likely benefits and burdens/risks of treatment.

Welfare attorneys in Scotland

In Scotland, under the Adults with Incapacity (Scotland) Act 2000 a competent adult can nominate a welfare attorney or proxy to make medical decisions on their behalf should they lose the capacity to make those decisions by themselves.

In Scotland, the law also provides for a general power to treat a patient who is unable to give consent. The dental professional primarily responsible for treatment must have completed a certificate of incapacity before any treatment is undertaken, other than in an emergency.

Northern Ireland

The Mental Capacity Act (NI) 2016 is only partially in force at the time of writing (for example, in relation to deprivation of liberty safeguards) but when fully implemented it will bring NI legislation in line with the rest of the UK.

Until the 2016 Act is fully in force common law principles apply and a patient who lacks capacity can only be treated where it is both necessary and in their best interests.

DDU advice

  • When deciding what constitutes a patient's best interests, take into account factors other than just their dental condition. Consider consulting with others, including getting a second opinion from a colleague, before proceeding with treatment.
  • Make a record in the patient's notes of the process by which you worked out the patient's capacity or lack thereof, and their best interests. Include how the decisions were reached, the reasons, who was consulted and the factors considered.
  • Consider alternative treatments which may be more appropriate for the patient. The treatment you provide should be that which is the least restrictive of the patient's rights and freedoms.

This page was correct at publication on 21/05/2020. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.