Guest Blog: The Mental Capacity Maze

Jane Kingston, Senior Advocacy Coordinator at  Advocacy Centre North asks the question “Can future planning be a Best Interest Serious Medical Treatment if it’s not time and decision specific?”


As advocates we welcome approaches from professionals to involve our services. However, there are some unusual expectations on the advocacy role.  A recent request to an advocacy service for IMCA support with NHS Emergency Health and Care Plans (EHCP) has opened a debate in the sector to ensure we are all compliant with the principles of the Mental Capacity Act. EHCP documents and  the step by step care needed during and after an anticipated emergency, makes communication easier in the event of a healthcare emergency (this accompanies rather than replaces a DNAR order).

So, we all know that an IMCA is instructed for Best Interest decisions over Serious Medical Treatments. A Best Interest decision applies to a person assessed as lacking the mental capacity to decide themselves in a specific situation (after practicable steps have been taken to support them making their own decision) and it must be time and decision specific. So, by definition this makes a future care plan difficult to define as time and decision-specific Serious Medical Treatment, which is defined as:

treatment which involves giving new treatment, stopping treatment that has already started or withholding treatment that could be offered in circumstances where:

  • if a single treatment is proposed there is a fine balance between the likely benefits and the burdens to the patient and the risks involved
  • a decision between a choice of treatments is finely balanced, or
  • what is proposed is likely to have serious consequences for the patient.

Some advocacy services take such referrals and others do not. This request is throwing up the following questions:

  • Can a plan which relates to future decisions be compliant with the Mental Capacity Act, will it allow for fluctuations in capacity or changes in a person’s condition and ability to make their own future decision?
  • Will the NHS Emergency Health and Care Plan be classed in the same way the Mental Capacity Act supports IMCA involvement for Do Not Attempt Resuscitation (DNAR) cases?

We’d love to hear your thoughts and get the debate flowing – please share this article or send your thoughts to and