Consent to medical treatment

However, ideally, the courts do uphold the refusal of treatment of competent patients where they believe the patient is fully competent. For example, where a patient suffering from motor neurone disease, gradually losing the ability to communicate, was able to indicate by moving an eyelid, that he wanted his respiration to be switched off, the court were willing to uphold the patient’s decision to refuse consent. Therefore, his rights, as a competent patient, were protected. Thus, the English courts are willing to uphold an adult patient’s right to refuse medical treatment, providing that that patient is competent in the eyes of the law. I will examine the factors, which the English courts consider when assessing whether an adult patient is competent, in the second part of this essay.

Incompetent Adult Patients

It is useful to note that questions of competency arise where patients refuse to consent to medically recommended treatment. Where the patient agrees with a medical professional regarding treatment, they are deemed to have the capacity to make competent decisions. Therefore, rather disturbingly, evidence from English courts show that a more stringent test of competence may be applied where the patient is declining treatment. 

The English Courts are reluctant to uphold the rights of incompetent adult patients, based on the notion that the patient cannot fully understand the concept of the treatment in order to make a decision. Therefore, treatment against the wishes of incompetent patients are justified by English courts using the principle of necessity, and the principle of ‘best interests’. Where the court believes that it is not in the best interest of the incompetent patient to withhold consent for medical treatment, they will find that the treatment should be given against the wishes of the incompetent patient. The implications of such a decision proposes an infringement of various European rights such as the right to physical integrity, right to respect private life, right against degrading treatment of the adult patient. Therefore, where the court finds that the patient is incompetent, the court may substitute the patient’s autonomy for a paternalistic approach, and so they are less prepared to uphold the rights of an incompetent adult patient.

I will now turn to the factors, which have been taken into account by the English courts when reaching the decision of whether to uphold (in the case of a competent adult patient) or withhold (in the case of an incompetent adult patient) the rights of an adult patient to refuse medical treatment.

PART 2.

Competent Adult Patients

The test for competence at common law is a process based one, in that the English courts will look at whether the patient is able to participate in the decision making process regardless of the outcome. The test is outlined in Re C which involved a paranoid schizophrenic suffering from gangrene in his foot. He refused consent to an amputation of the foot, which would prove to be fatal. Three stages were identified for the courts to use to assess the competence of a patient: (1) comprehending and retaining treatment information; (2) believing it; and (3) weighing it in the balance to arrive at a choice. It was found that C was competent. It is doubtful whether C satisfied the second requirement of belief- he believed himself to be an excellent doctor and did not believe that he would die without amputation. The problem with this test lies with the belief requirement. Many patients may retain false hope that their doctor is mistaken, and thus not actually believe the treatment information. This would therefore render an adult patient incompetent, because according to this test, there would be an absence of the belief requirement.

Now, the English court may consider the requirements under the new statutory framework, Mental Capacity Act 2005 (hereafter MCA), when reaching a decision about the competence of the adult patient. This embraces the common law test in Re C although it rightly omits the belief requirement. Therefore, the English Courts will look at the requirements set out in section 3(1) MCA 2005 (namely all of the above requirements, excluding the belief requirement, laid down in Re C) in determining whether the adult patient is competent enough to refuse medical treatment, thus determining whether the English court will uphold the rights of that adult patient.

Incompetent Adult Patient

The English courts will not uphold the rights of an adult patient to refuse medical treatment in life or death situations, if they find that that adult lacks capacity (is incompetent), and that it is not in their best interests to refuse treatment (this is discussed further). The factors which the court considers in relation to assessing whether a patient is incompetent, are laid down in MCA 2005. If the patient is unable to understand the information relevant to the decision; unable to retain that information; unable to use or weigh that information as part of the process of making the decision; or unable to communicate the decision then the court will find they lack competency and thus cannot make an autonomous choice. The Act also adds the requirement that the inability to make a decision must be caused by an impairment or disturbance in the mind or brain. Therefore, some cases will remain outside of the Act, and in such cases, the common law test in Re C will still apply. Therefore, the English courts will use the factors laid down in Re C or the MCA 2005 in determining whether to uphold the rights of the adult patient, namely, the best interests test.

Once the court has found that the adult patient is incompetent and lacks capacity to make decisions, they will turn to look at the ‘best interests’ test in determining the outcome of the decision (in deciding whether to uphold the patient’s right to refuse medical treatment, or substituting that decision with a decision from the medical profession, based on the patient’s best interests).

If the patient falls within the Re C scope (in other words he/she does not have an impairment or disturbance in the mind or brain as required by MCA 2005) then the test is one of the best interests of the patient as specified by the House of Lords (HOL). However, the HOL, did  not specify ‘best interests’ in detail. It did, however, state that the Bolam test for medical negligence applied to determining the best interests. Therefore, it is the medical profession who decide the best interests of the patient, and this may be contrary to the patient’s right to refuse the treatment. In Re MB it was held that treatment could be imposed on the patient, by force, provided that the treatment is in their best interest. Therefore, to that extent, the court would not be upholding the rights of the adult patient. In Re A, Butler-Sloss confirmed that the best interests test ‘encompasses medical, emotional, and all other welfare issues’. She also separated the best interests test from the Bolam test. The problem with this approach is that it limits the role accorded to patient participation. Therefore, this may be the gateway for English courts to choose not to uphold the rights of the adult patient.

If the MCA 2005 applies to the incompetent adult patient, then the best interests test incorporated within the MCA 2005 applies. The criteria for determining the ‘best interest’ of the patient is outlined in section 4. There are three broad factors: protection of patient’s position in event that he is likely to regain capacity; consideration of the wishes, feelings, values and beliefs that the patient had when competent or would have if competent now; consideration of the patient’s current, incompetent, wishes and feelings, and involvement of the patient in the decision-making process, notwithstanding his incapacity. The problem with this latter requirement is that if a patient has never been competent (is born permanently competent) then the criteria fails to suit that situation. Also, the criteria are vague as it allows consideration of any criteria patient may would consider if competent. However, the Act does encourage that the person should participate in the process of determining his best interests. Therefore, it may safeguard the patient’s interest. But notably, the best interest of the patient can be contrary to the patient’s refusal to consent to medical treatment, and therefore the English court may not uphold the patient’s right.

Conclusion

The English court will uphold the right of a competent adult patient, as they are able to make their own decision autonomously. However, where the court finds that the patient is incompetent, they may find that the best interests of the patient is not compatible with the patient’s choice, and to this extent their right will not be upheld.

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Bibliography

Books

E. Jackson, Medical Law: Text, Cases and Materials (2nd ed. 2009)

E. Wicks, Human Rights and Healthcare (Hart Publishing) (2007)

Journals

Mary Donnelly, ‘Best Interests, Patient Participation And The Mental Capacity Act 2005’ (2009) Med L Rev 1 at 5.

Michael Gunn, ‘The Meaning of Incapacity’ (1994) 2 Medical Law Review 8.

Michael A. Jones, Kirsty Keywood, ‘Assessing The Patient’s Competence To Consent To Medical Treatment’ 2 (1996) Medical Law International 107

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