Common law allows medical practitioners to give immediate treatment to a patient who cannot consent, whether by reason of temporary or permanent incapacity, on the basis that it is “necessary”. Treatment will be considered necessary where it is needed to save life and avoid significant deterioration in the patient’s health, or alleviate pain or suffering. This will depend on the clinical assessment at the time.

In all normal circumstances, where there is time the procedures set out in Part 5 of the Adults with Incapacity Act should be followed. The basic judgement as to whether or not there is time to complete the appropriate form and undertake the process associated with its completion is essentially a medical judgement in the first instance.