Adults Who Lack Capacity to Consent and Deprivation of Liberty

The basic presumption of the Mental Capacity Act that an individual has capacity to make decisions regarding treatment is frequently challenged within intensive care practice where individuals are often incapacitated due to the nature of their condition or treatment for it. Because many conditions are life-threatening, treatment is frequently administered on the basis of an assumption that it provides an overall benefit to the person and that their interests are best served by preservation of life. There is now a statutory definition of best interests although factors in its determination can at times be opaque, which suggests a gradual move towards the US-based ‘substituted judgement’ test. An individual can be lawfully prevented from leaving the intensive care unit while receiving intensive care treatment provided that treatment is given in good faith and is materially the same as would be given to a person of sound mind with the same physical illness.