Consent to medical treatment

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To what extent have the English courts been prepared to uphold an adult patient’s right to refuse medical treatment in life and death situations? What factors have been taken into account by the courts in reaching their decisions?

Word Count (Including Footnotes): 2,137.



The English courts’ decision whether or not to uphold an adult patient’s right to refuse medical treatment ultimately hinges upon whether the adult has the capacity (competence) to refuse treatment. ‘Capacity to consent to treatment is the ability or skill which a person must have to ensure the primacy of respect for a person’s autonomy’. Where the courts find that the adult patient possesses the capacity to refuse medical treatment, they are less reluctant to withhold the patient’s right to make an autonomous choice to refuse medical treatment. For example, the court would uphold a competent adult patient’s choice to refuse a blood transfusion due to religious beliefs (Jehovah’s Witness). Therefore, such a patient’s right is respected. However, the willingness of English courts to uphold the rights of a competent adult patient is not identical to its willingness to uphold the rights of an incompetent patient who lacks capacity. Therefore, I will attempt to show that the English courts are only willing to uphold an adult patient’s right to refuse treatment to the extent that they are a competent adult patient. Beyond this, as we will see, the English courts tend to prioritise medical opinion regarding the treatment of incompetent patients, rather than the adult patient’s opinion.

Competent Adult Patients

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body...”

This is the approach, which English courts adopt, “notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent”. As noted above, this is evident in the situation where the competent adult patient is a Jehovah’s Witness who refuses medical treatment to save their life. Butler-Sloss J has acknowledged that doctors who treat a Jehovah’s Witness in such a way “do so at their peril”. As Jones and Keywood rightly point out, it is not for the doctor to second-guess the reasonableness of the decision to refuse medical treatment in such a religious motivated situation. However, if the doctors adopt the view that the decision to refuse medical treatment is so irrational that it is proof that the adult patient is incompetent, then if the court agrees, in such a situation the English Courts may decide not to uphold the patient’s right to refuse. This is a frightening fact that ultimately, even the rights of competent adult patients hinge upon whether the medical profession and the court finds that the decision of what is truly a competent adult, is so irrational that it shows they are actually incompetent to make the decision. Surely to do so would be to simply infer that a competent patient is incompetent so as to avoid performing irrational procedures, such as the removal of life sustaining treatment.

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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 ...

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