Assisted Decision-Making (Capacity) Act 2015

Scope of authority — personal welfare decisions

62. (1) Where an enduring power of attorney confers authority in relation to personal welfare, the power does not authorise an attorney to do an act that is intended to restrain the donor unless there are exceptional emergency circumstances and—

(a) the donor lacks capacity in relation to the matter in question or the attorney reasonably believes that the donor lacks such capacity,

(b) the attorney reasonably believes that it is necessary to do the act in order to prevent an imminent risk of serious harm to the donor or to another person, and

(c) the act is a proportionate response to the likelihood of the harm referred to in paragraph (b) and to the seriousness of such harm.

(2) For the purposes of this section, an attorney restrains a donor if he or she—

(a) uses, or indicates an intention to use, force to secure the doing of an act which the donor resists,

(b) intentionally restricts the donor’s liberty of voluntary movement or behaviour, whether or not the donor resists,

(c) administers a medication, which is not necessary for a medically identified condition, with the intention of controlling or modifying the donor’s behaviour or ensuring that he or she is compliant or not capable of resistance, or

(d) authorises another person to do any of the things referred to in paragraph (a) to (c).

(3) An attorney who restrains a donor shall cease the restraint immediately upon the restraint no longer being necessary in order to prevent an imminent risk of serious harm to the donor or to another person.

(4) Subsections (1) to (3) shall not be construed to prejudice the generality of section 69 of the Mental Health Act 2001 or of rules made under that section.

(5) A donor shall not, in an enduring power of attorney, include a relevant decision—

(a) relating to refusal of life-sustaining treatment, or

(b) which is the subject of an advanced healthcare directive made by him or her.

(6) To the extent that an enduring power of attorney includes a relevant decision specified in subsection (5), the power shall be null and void.