Medical Law: Capacity and Consent

“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 treatment, then he will surely have the capacity to refuse treatment as well. The law however is less clear in such scenarios. Although Gillick provides that a child may have capacity to consent, subsequent decisions appear that their capacity will only apply to consent and not to the refusal of treatment. In the instance of a refusal, the child’s parents or those in loco parentis may still override the decision of that child. The case of Re R (A Minor) (Wardship: Consent to Treatment) [1991] concerned a 15 year old girl who objected to receiving antipsychotic drugs. The judge at first instance held that if she had the necessary capacity then her refusal could not be overridden. The Court of Appeal also agreed with this outcome. The case went to the House of Lords where Lord Donaldson held that the test provided for in Gillick was obiter. He instead referred to the analogy of a keyholder. He stated that usually in the case of an adult patient there is only one keyholder; the adult. However, in the case of a child patient there are two keyholders, namely the parents which have the right to turn the key and unlock the door. If the doctor obtains the consent of one authorised person, or one of those keyholders, then he may continue with the treatment without committing a trespass. Lord Donaldson goes on to say that Lord Scarman in the case of Gillick was not saying that just because a child is Gillick competent, the parents loose their right to consent.

“If Lord Scarman intended to go further than this and to say that in the case of a ‘Gillick competent’ child, a parent has no right either to consent or to refuse consent, his remarks were obiter……”

Lord Donaldson further goes on to explain the ambiguities of s8 stating that the section does not appear to put an obligation on a doctor to obtain the consent of the child in preference to that of the parent or guardian. This analogy appears to surmise that treatment could lawfully proceed with the consent of a young person or a person with parental responsibility, and that the consent of a person with parental responsibility would override the refusal of a young person. This ruling and the subsequent ruling in Re W (A Minor) have effectively made it impossible for a competent minor to refuse treatment. The case of Re W (A Minor) concerned the refusal of treatment from a 16 year old girl suffering from anorexia nervosa. The Court of Appeal held that section 8 did not confer an absolute right on the child and could be overridden by the court. Lord Donaldson rejects the keyholder analogy preferring that of the legal flack jacket. The flack jacket is consent. Anyone who gives the doctor a flack jacket may take it back, but the doctor only needs one and so long as he has one he has the legal right to proceed. The decisions of these two cases have created conflict between the Gillick competent child and the decisions of Lord Donaldson. Notably, this too has created a conflict between the idea of patient autonomy and the paternalistic doctor.

The case of Re E (A Minor) has tried to settle this dispute. The case concerned the refusal of a blood transfusion by a 15 year old patient who was a devout Jehovah’s Witness. Ward J ordered the treatment of the child until he was 18. At that age the child was able to make up his own decisions and refused the treatment. As Daniel’s parents both agree with the medical opinion for him to have a blood transfusion, their consent is valid and Daniel will have to undergo the treatment. However if there were a difference of opinion between the parents and the doctor, the court may become involved in its parens patriae jurisdiction. In practice, a young person’s wish not to undergo medical treatment may be overridden by the courts if the young person lacks sufficient understanding to appreciate the consequences of the refusal, or the refusal is not in the young person’s best interests. The blood transfusion is clearly in Daniel’s best interests, so even if it was held that he did have the mental capacity to consent, his consent could still be overridden by his parents or by the courts.

As was seen in Daniel’s case, for a patient to give a valid consent to medical treatment the patient must possess capacity. However, what about those who are lacking in capacity altogether? The Mental Capacity Act 2005 now governs this area of the law. The incompetent patient can be separated into two categories; the temporarily incompetent, which covers those who are unconscious, and the long-term incompetent, which covers those who have a permanent mental disability.

The MCA sets out five key principles: 1) A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise; 2) The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions; 3) That individuals must retain the right to make what might be consider as eccentric or unwise decisions; 4) Best interests - anything done for or on behalf of people without capacity must be in their best interests; and 5)The least restrictive intervention - anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

With a temporarily incompetent patient a doctor can treat without any consent and then later, if charged with a batter, can raise the defence of necessity. This was seen in the case of Re F (Mental Patient: Sterilisation) [1990] where it was held that when action is taken to preserve the life, health or well being of a patient who is unable to consent to it, that action will be justified if it has arisen out of an emergency. Lord Goff went on to state that in order to fall within the principle of necessity 1) there must be a necessity to act when it is not practicable to communicate with the assisted person, and 2) the action taken must be such as a reasonable person would in all the circumstances take acting in the best interests of the assisted person. The term 'best interests' is not defined within the MCA because it depends on the individual circumstances. In Re F some clarity was given as to what constitute best interests. The case involved whether treatment could be provided to a person who lacked the capability to consent to a non-therapeutic sterilisation. At the time the law provided no provision to allow another person to consent on behalf of any other adult. The House of Lords ruled that in this particular case the doctors could lawfully treat, and this would not constitute a battery or a criminal assault. Although a declaration from the courts always has to be sought in cases of 'incompetents' for sterilisation. In essence, this means that it is the doctors who will make the medical decisions on behalf of the incompetent patient on the basis of what they believe to be in the patient’s best interests, particularly as there is no proxy decision maker for an incompetent patient. This would appear that there is no real protection for an incompetent patient. There is no obligation on a doctor to seek the court’s approval before any medical procedure is carried out, although as stated by Lord Brandon in Re F, it would be “a matter of good practice.”

A procedure that carries risks may still be considered to be in a patient's best interests as long as the potential benefits outweigh any possible detriment. Treatment has been held to be in the patient's best interests even when it is non-therapeutic (sterilisation for contraceptive purposes). The right to marry and found a family is set out in Article 12 of the European Convention on Human Rights, and to remove the ability of an individual to have children is a very drastic step to take.

It must always be remembered that the welfare of the mentally disabled person was paramount, and the question to be considered was: which outcome would best serve his or her interests?

When the doctors decide whether or not too perform treatment will have to weigh the odds. Is abortion and sterilisation in her best interest? For this can take into account the views of both mother and father and if needs be can ask the court whether or not the treatment is lawful due to the nature of the treatment proposed.  Courts are unable to consent on behalf of the patient but can give a declaration as to the lawfulness of the treatment.