Medical Law: Capacity and Consent

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Medical Law Coursework

Common law has protected the personal and bodily interests of the individual through the law of trespass. When a patient undergoes treatment, it is the provision of consent that prevents the doctor from being held liable for a battery or for negligence. The essential elements to a valid consent can be summed up as follows: a) the patient must have sufficient understanding, otherwise known as the mental capacity to make the decision, b) the patient must consent (or refuse) the treatment of his own free will, with no duress or undue influence, and c) the patient must have been given sufficient information about the proposed treatment. patient is capable of making such decisions, his consent or refusal will be valid.

The case of Re C held that capacity was the comprehending and retaining of treatment information, believing this information and weighing the information in the balance and arriving at a choice. The MCA now provides a fourth requirement that the patient must communicate his thoughts. Adults are presumed to have capacity to consent to treatment from the age of 18. For competent adults, the power to consent to treatment includes the right to refuse treatment. This right is premised on the right of each individual to autonomy and personal integrity. In the words of Justice Cardozo: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body”. Hence, a competent adult has an absolute right to refuse medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death. The rules that apply to young people under 18 years of age are, however, quite different. Section 8(1) of the Family Law Reform Act 1969 provides:

“The consent of a minor who has attained the age of 16 years to any surgical medical or dental treatment, which in the absence of consent would constitute a trespass to his person, shall be as effective as it would be if he were of full age, and where a minor has, by virtue of this section, given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.”

The law has developed further and acknowledges that an age cannot be the turning point for a minor to make his or her own treatment choices and have those choices upheld by the law. This is evident from the case of Gillick where Lord Fraser stated:

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“Provided the patient….is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks capacity.”

Thus, a child below the age of 16 may lawfully be given general medical advice and treatment without parental agreement, provided that child has achieved sufficient maturity to understand fully what is proposed. This could be read that such individuals will have a right to reject treatment as well as accept treatment; surely if a child has the capacity (the ability to make a rational decision about treatment) to accept ...

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