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Mental Capacity Act (MCA) practice guidance


Part 16 Serious medical treatment

[Code of Practice 10.42–10.50]

If someone is unbefriended and lacks capacity to make a decision about serious medical treatment they must be referred for Independent Mental Capacity Advocate representation and an evidence-based report. A referral should be made as early as possible on the care pathway. (Code of Practice 10.42) (Part 15: Independent Mental Capacity Advocates)

Serious medical treatment is defined as:

the starting, stopping or withholding of treatment when the choice of treatment is finely balanced, where the likely benefits and burdens of the treatment are finely balanced, or where there are likely to be serious consequences for the person. (Code of Practice 10.43)

Serious consequences includes the effects of the treatment, such as prolonged pain or distress and the consequences of the decision such as stopping life sustaining treatment. It also includes treatment which has an impact on the person’s future life choices, such as treatment which might affect fertility. (Code of Practice 10.44)

The Code of Practice sets out examples of medical treatment which might be considered serious.

  • Chemotherapy and surgery for cancer
  • Electro-convulsive therapy
  • Therapeutic sterilisation
  • Major surgery – such as open-heart surgery or brain/neuro-surgery
  • Major amputations – for example, loss of an arm or leg
  • Treatments which will result in permanent loss of hearing or sight
  • Withholding or stopping artificial nutrition and hydration
  • Termination of pregnancy

(Code of Practice 10.45)

The code is also clear in stating that these are only examples of treatments that would be considered serious in any situation.

A relatively simple procedure for one person, such as a hernia repair under a general anaesthetic, could be considered as high risk for another if there is only sparse health history and other co-morbidities such as heart failure or obesity. In this case you may want to consider this treatment for this individual as serious.

Older people or people who have disabilities may be more vulnerable and less able to withstand some medical interventions. Some medical treatment may be regarded as serious for those individuals.

If a clinician is not clear if a proposed treatment should be considered as serious, the situation can be discussed with colleagues.

All decisions about medical treatment need to follow the best interest process.
(Part 8: Best interests decisions)


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