Jurisdiction(s):
United Kingdom

Related legal acts

Key definition

Capacity to consent definition

What does Capacity to consent mean? Capacity to consent describes whether a person can understand relevant information about a proposed decision, weigh it, and communicate a choice at the time it is made. It is a descriptive term used across data protection, healthcare, research and other legal contexts. For data protection, the UK GDPR and Data Protection Act 2018 do not define capacity. Valid consent must be informed, specific and freely given; in practice, adults are presumed to have capacity unless there is reason to doubt it. If a person lacks capacity, consent is not a reliable lawful basis and controllers should consider an alternative basis....

Serious Medical Treatment under the MCA 2005: when Court of Protection applications are required, best interests, life‑sustaining treatment, powers and case management (England and Wales)

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Practice notes

Medical treatment of those without capacity to consent

As a general rule, it is a patient’s (P’s) consent that renders invasive medical intervention lawful. Where P cannot provide consent, treatment that is necessary and in P’s best interests may lawfully be given. Section 5 of the Mental Capacity Act 2005 (MCA 2005) supplies a general defence for acts undertaken in connection with a person’s care or treatment, provided the actor has first taken reasonable steps to assess whether the individual lacks capacity in relation to the decision and reasonably believes both that capacity is absent and that the act is in that person’s best interests. In 2018, the Supreme Court in NHS Trust v Y confirmed that, if the MCA 2005 is complied with, relevant professional guidance is observed and the code of practice guidance followed, including the conduct of the decision-making process, then, where there is agreement at the end of that process about (a) the person’s decision-making capacity and (b) their best interests, medical treatment may, in principle, be provided to, withdrawn...

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Alex Ruck Keene , KC (Hon)

39 Essex Chambers

Alex Ruck Keene KC (Hon) is an experienced barrister, writer and educator. His practice is focused on mental capacity, mental health and healthcare law. He also writes extensively, editing and contributing to leading textbooks and (amongst many other publications) the 39 Essex Chambers Mental Capacity Law Report, the ‘bible’ for solicitors (and others) working in the area. He is the creator of the website Mental Capacity Law and Policy, providing resources and expert commentary on some of the most difficult mental capacity issues.Alex complements his practice with a deep interest in research and education. He is a Visiting Professor at the Dickson Poon School of Law, King’s College London, a Visiting Professor at the Geller Institute of Ageing and Memory, University of West London, a Visiting Senior Lecturer at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London and a Research...

Web page updated on 21/05/2026

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