NMC Code Section 4: Act in the Best Interests of Patients

Section 4 sets the framework for what to do when a patient cannot make a decision themselves.

“Act in the best interests of people at all times.”

The sub-clauses:

• 4.1 Balance the need to act in the best interests of people at all times with the requirement to respect a person’s right to accept or refuse treatment.
• 4.2 Make sure that you get properly informed consent and document it before carrying out any action.
• 4.3 Keep to all relevant laws about mental capacity that apply in the country in which you are practising, and make sure that the rights and best interests of those who lack capacity are still at the centre of the decision-making process.

Section 4 sits on top of three pieces of UK law:

• Mental Capacity Act 2005 (England and Wales).
• Adults with Incapacity (Scotland) Act 2000.
• Mental Capacity Act (Northern Ireland) 2016.

Plus the common law on emergency treatment where capacity assessment isn’t possible in time.

What it means in practice

The five principles of the Mental Capacity Act (England/Wales) are the operating framework:

1. Assume capacity unless proven otherwise.
2. Support decision-making: give the person all practicable help to decide.
3. Unwise decisions are still capacitous: a person doesn’t lack capacity because they make a choice you disagree with.
4. Best interests apply only when capacity is lacking.
5. Least restrictive option: the action chosen should restrict freedom and rights as little as possible.

Capacity is decision-specific and time-specific. A patient with dementia may have capacity to choose what to wear but lack capacity to consent to surgery. A patient may have capacity in the morning and lack it after a delirium event in the afternoon.

Consent for a specific decision requires that the person:

• Understands the information relevant to the decision.
• Retains the information long enough to decide.
• Weighs the information.
• Communicates the decision.

If any of those four are absent, capacity is lacking for that decision at that time.

Common breaches

Section 4 breaches in fitness-to-practise cases tend to fall into:

• Treating without consent: proceeding with a procedure or medication without checking the patient had consented.
• Assumed incapacity: treating an elderly patient or someone with a mental health diagnosis as lacking capacity without doing the assessment.
• Inadequate best-interests process: not consulting family or those who know the patient, not considering the patient’s previous wishes.
• Failure to record consent: even when consent was obtained, no record of the discussion.

Documentation is the single biggest practical issue. Many capacity assessments and consent discussions happen verbally and are forgotten on paper. The audit cares what was documented.

CPD that maps to Section 4

• Mental Capacity Act training (mandatory in most NHS trusts, often annual).
• Consent law courses or e-learning.
• Deprivation of Liberty Safeguards (DoLS) and the incoming Liberty Protection Safeguards (LPS). The latter has been delayed multiple times; check current status in your jurisdiction.
• Advance care planning: the ReSPECT framework is the current UK standard.
• Lasting power of attorney awareness, for understanding who can decide if the patient can’t.
• End-of-life decision-making including DNACPR conversations.

The MCA training is the foundational one. Most other Section 4 CPD assumes you have it.

Common reflective account themes

Strong Section 4 accounts tend to describe:

• A capacity assessment you carried out where the outcome was less obvious than it first appeared.
• A consent conversation where you slowed down and gave the patient real choice rather than reading them a form.
• A best-interests meeting you contributed to, especially for an end-of-life decision.
• A patient’s right to refuse that you supported even when colleagues were uncomfortable.

The accounts that work show the registrant doing the harder thing: supporting unwise but capacitous choices, recognising the line between capacity assessment and persuasion, advocating for the patient’s wishes when they couldn’t.

Where Section 4 connects to other sections

• Section 2 (listen and respond): capacitous refusal of care lives at the intersection of 2.5 and 4.1.
• Section 17 (protect vulnerable people): safeguarding interventions often involve capacity considerations.
• Section 5 (privacy and confidentiality): best-interests discussions involve sharing information with family or other professionals.

The next chapter covers Code Section 5: respecting privacy and confidentiality.