Acts in connection with care or treatment

Tasks carried out by carers, healthcare or social care staff which involve the personal care, healthcare or medical treatment of people who lack capacity to consent to them.

Advance decision to refuse treatment

A decision to refuse specified treatment made in advance by a person who has capacity to do so. This decision will then apply at a future time when that person lacks capacity to consent to, or refuse, the specified treatment.

Specific rules apply to advance decisions to refuse life-sustaining treatment.

Adult protection procedures

Procedures devised by local authorities, in conjunction with other relevant agencies, to investigate and deal with allegations of abuse or ill treatment of vulnerable adults, and to put in place safeguards to provide protection from abuse.

After-care under supervision

Arrangements for supervision in the community following discharge from hospital of certain patients previously detained under the Mental Health Act 1983.

Agent

A person authorised to act on behalf of another person under the law of agency.
Attorneys appointed under an LPA or EPA are agents and court-appointed deputies are deemed to be agents and must undertake certain duties as agents.

Appointee

Someone appointed under Social Security Regulations to claim and collect social security benefits or pensions on behalf of a person who lacks capacity to manage their own benefits. An appointee is permitted to use the money claimed to meet the person’s needs.

Appropriate body

A committee which is established to advise on, or on matters which include, the ethics of intrusive research in relation to people who lack capacity to consent to it, and is recognised for those purposes by the Secretary of State (in England) or the National Assembly for Wales (in Wales).

Approved Social Worker (ASW)

A specially trained social worker with responsibility for assessing a person’s needs for care and treatment under the Mental Health Act 1983. In particular, an ASW assesses whether the person should be admitted to hospital for assessment and/or treatment.

Artificial Nutrition and Hydration (ANH)

Artificial nutrition and hydration (ANH) has been recognised as a form of medical treatment. ANH involves using tubes to provide nutrition and fluids to someone who cannot take them by mouth. It bypasses the natural mechanisms that control hunger and thirst and requires clinical monitoring.

Attorney

Someone appointed under either a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA), who has the legal right to make decisions within the scope of their authority on behalf of the person (the donor) who made the Power of Attorney.

Best interests

Any decisions made, or anything done for a person who lacks capacity to make specific decisions, must be in the person’s best interests. There are standard minimum steps to follow when working out someone’s best interests. These are set out in section 4 of the Act, and in the non-exhaustive checklist in 5.13.

Bournewood provisions

A name given to some proposed new procedures and safeguards for people who lack capacity to make relevant decisions but who need to be deprived of their liberty, in their best interests, otherwise than under the Mental Health Act 1983. The name refers to a case which was eventually decided by the European Court of Human Rights.

Capacity

The ability to make a decision about a particular matter at the time the decision needs to be made. The legal definition of a person who lacks capacity is set out in section 2 of the Act.

Someone who provides unpaid care by looking after a friend or neighbour who needs support because of sickness, age or disability. In this document, the role of the carer is different from the role of a professional care worker.

Someone employed to provide personal care for people who need help because of sickness, age or disability. They could be employed by the person themselves, by someone acting on the person’s behalf or by a care agency.

Children Act 1989

A law relating to children and those with parental responsibility for children.

Complaints Review Panel

A panel of people set up to review and reconsider complaints about health or social care services which have not been resolved under the first stage of the relevant complaints procedure.

A person who is consulted, for example about the involvement in a research project of a person who lacks capacity to consent to their participation in the research.

Court of Protection

The specialist Court for all issues relating to people who lack capacity to make specific decisions. The Court of Protection is established under section 45 of the Act.

Court of Protection Visitor

Someone who is appointed to report to the Court of Protection on how attorneys or deputies are carrying out their duties. Court of Protection Visitors are established under section 61 of the Act. They can also be directed by the Public Guardian to visit donors, attorney and deputies under section 58 (1) (d).

Criminal Records Bureau (CRB)

An Executive Agency of the Home Office which provides access to criminal record information. Organisations in the public, private and voluntary sectors can ask for the CRB to check candidates for jobs to see if they have any criminal records which would make them unsuitable for certain work, especially that involves children or vulnerable adults.

For some jobs, a CRB check is mandatory.

Data Protection Act 1998

A law controlling the handling of, and access to, personal information, such as medical records, files held by public bodies and financial information held by credit reference agencies.

Under the Act, many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves. The person making the decision is referred to throughout the Code, as the ‘decision-maker’, and it is the decision-maker’s responsibility to work out what would be in the best interests of the person who lacks capacity.

A kind of order made by the Court of Protection. For example, a declaration could say whether a person has or lacks capacity to make a particular decision, or declaring that a particular act would or would not be lawful. The Court’s power to make declarations is set out in section 15 of the Act.

Deprivation of liberty

Deprivation of liberty is a term used in the European Convention on Human Rights about circumstances when a person’s freedom is taken away. Its meaning in practice is being defined through case law.

Someone appointed by the Court of Protection with ongoing legal authority as prescribed by the Court to make decisions on behalf of a person who lacks capacity to make particular decisions as set out in Section 16(2) of the Act.

A person who makes a Lasting Power of Attorney or Enduring Power of Attorney.

Enduring Power of Attorney (EPA)

A Power of Attorney created under the Enduring Powers of Attorney Act 1985 appointing an attorney to deal with the donor’s property and financial affairs. Existing EPAs will continue to operate under Schedule 4 of the Act, which replaces the EPA Act 1985.

A family member who looks after a relative who needs support because of sickness, age or disability. It does not mean a professional careworker employed by a disabled person or a care assistant in a nursing home, for example.

Family Division of the High Court

The Division of the High Court that has the jurisdiction to deal with all matrimonial and civil partnership matters, family disputes, matters relating to children and some disputes about medical treatment.

Fiduciary duty

Anyone acting under the law of agency will have this duty. In essence, it means that any decision taken or act done as an agent (such as an attorney or deputy) must not benefit themselves, but must benefit the person for whom they are acting.

Arrangements, made under the Mental Health Act 1983, for a guardian to be appointed for a person with mental disorder to help ensure that the person gets the care they need in the community.

Health Service Ombudsman

An independent person whose organisation investigates complaints about National Health Service (NHS) care or treatment in England which have not been resolved through the NHS complaints procedure.

Human Rights Act 1998

A law largely incorporating into UK law the substantive rights set out in the European Convention on Human Rights.

Human Tissue Act 2004

A law to regulate issues relating to whole body donation and the taking, storage and use of human organs and tissue.

Section 44 of the Act introduces a new offence of ill treatment of a person who lacks capacity by someone who is caring for them, or acting as a deputy or attorney for them. That person can be guilty of ill treatment if they have deliberately ill-treated a person who lacks capacity, or been reckless as to whether they were ill-treating the person or not. It does not matter whether the behaviour was likely to cause, or actually caused, harm or damage to the victim’s health.

Independent Complaints Advocacy Service (ICAS)

In England, a service to support patients and their carers who wish to pursue a complaint about their NHS treatment or care.

Independent Mental Capacity Advocate (IMCA)

Someone who provides support and representation for a person who lacks capacity to make specific decisions, where the person has no-one else to support them. The IMCA service is established under section 35 of the Act and the functions of IMCAs are set out in section 36. It is not the same as an ordinary advocacy service.

Information Commissioner’s Office

An independent authority set up to promote access to official information and to protect personal information. It has powers to ensure that the laws about information, such as the Data Protection Act 1998, are followed.

Lasting Power of Attorney (LPA)

A Power of Attorney created under the Act appointing an attorney (or attorneys) to make decisions about the donor’s personal welfare (including healthcare) and/or deal with the donor’s property and affairs.

Lifesustaining treatment

Treatment that, in the view of the person providing healthcare, is necessary to keep a person alive See Section 4(10) of the Act.

Litigation friend

A person appointed by the court to conduct legal proceedings on behalf of, and in the name of, someone who lacks capacity to conduct the litigation or to instruct a lawyer themselves.

Local Government Ombudsman

In England, an independent organisation that investigates complaints about councils and local authorities on most council matters including housing, planning, education and social services.

A language programme using signs and symbols, for the teaching of communication, language and literacy skills for people with communication and learning difficulties.

A process for resolving disagreements in which an impartial third party (the mediator) helps people in dispute to find a mutually acceptable resolution.

Mental capacity

See capacity

Mental Health Act 1983

A law mainly about the compulsory care and treatment of patients with mental health problems. In particular, it covers detention in hospital for mental health treatment.

Mental Health Review Tribunal

An independent judicial body with powers to direct the discharge of patients who are detained under the Mental Health Act 1983.

NHS Litigation Authority

A Special Health Authority (part of the NHS), responsible for handling negligence claims made against NHS bodies in England.

Office of the Public Guardian (OPG)

The Public Guardian is an officer established under Section 57 of the Act. The Public Guardian will be supported by the Office of the Public Guardian, which will supervise deputies, keep a register of deputies, Lasting Powers of Attorney and Enduring Powers of Attorney, check on what attorneys are doing, and investigate any complaints about attorneys or deputies. The OPG replaces the Public Guardianship Office (PGO) that has been in existence for many years.

Official Solicitor

Provides legal services for vulnerable persons, or in the interests of achieving justice. The Official Solicitor represents adults who lack capacity to conduct litigation in county court or High Court proceedings in England and Wales, and in the Court of Protection.

Patient Advice and Liaison Service (PALS)

In England, a service providing information, advice and support to help NHS patients, their families and carers. PALS act on behalf of service users when handling patient and family concerns and can liaise with staff, managers and, where appropriate, other relevant organisations, to find solutions.

Permanent vegetative state (PVS)

A condition caused by catastrophic brain damage whereby patients in PVS have a permanent and irreversible lack of awareness of their surroundings and no ability to interact at any level with those around them.

Personal welfare

Personal welfare decisions are any decisions about person’s healthcare, where they live, what clothes they wear, what they eat and anything needed for their general care and well-being. Attorneys and deputies can be appointed to make decisions about personal welfare on behalf of a person who lacks capacity. Many acts of care are to do with personal welfare.

Property and affairs

Any possessions owned by a person (such as a house or flat, jewellery or other possessions), the money they have in income, savings or investments and any expenditure. Attorneys and deputies can be appointed to make decisions about property and affairs on behalf of a person who lacks capacity.

Protection from liability

Legal protection, granted to anyone who has acted or made decisions in line with the Act’s principles.

Protection of Vulnerable Adults (POVA) list

A register of individuals who have abused, neglected or otherwise harmed vulnerable adults in their care or placed vulnerable adults at risk of harm. Providers of care must not offer such individuals employment in care positions.

Public Services Ombudsman for Wales

An independent body that investigates complaints about local government and NHS organisations in Wales, and the National Assembly for Wales, concerning matters such as housing, planning, education, social services and health services.

Someone appointed by the former Court of Protection to manage the property and affairs of a person lacking capacity to manage their own affairs. Existing receivers continue as deputies with legal authority to deal with the person’s property and affairs.

The use or threat of force to help do an act which the person resists, or the restriction of the person’s liberty of movement, whether or not they resist. Restraint may only be used where it is necessary to protect the person from harm and is proportionate to the risk of harm.

Statutory principles

The five key principles are set out in Section 1 of the Act. They are designed to emphasise the fundamental concepts and core values of the Act and to provide a benchmark to guide decisionmakers, professionals and carers acting under the Act’s provisions. The principles generally apply to all actions and decisions taken under the Act.

Two-stage test of capacity

Using sections 2 and 3 of the Act to assess whether or not a person has capacity to make a decision for themselves at that time.

An intentional or deliberate omission or failure to carry out an act of care by someone who has care of a person who lacks (or whom the person reasonably believes lacks) capacity to care for themselves. Section 44 introduces a new offence of wilful neglect of a person who lacks capacity.

Written statements of wishes and feelings

Written statements the person might have made before losing capacity about their wishes and feelings regarding issues such as the type of medical treatment they would want in the case of future illness, where they would prefer to live, or how they wish to be cared for. They should be used to help find out what someone’s wishes and feelings might be, as part of working out their best interests. They are not the same as advance decisions to refuse treatment and are not binding.