Capacity & Consent
The Key To Autonomy
The moral principle of autonomy or self determination is given its legal expression in the law
relating to consent
Defence for liability in the tort of Trespass to the person
Largely determined at common law
Cardozo J. Proclaimed in his now classic statement :-
" Every human being of adult years and sound mind has a right to determine what shall be done
with his own body; and a surgeon who performs an operation without his patients consent
commits an assault ....."
Schloendorff v Society of New York Hospitals 1914
Even when his or her own life depends on receiving medical treatment, an adult of sound mind is
entitled to refuse it.
This reflects the autonomy of each individual and the right of self determination.
Most recently considered in the House of Lords in Airedale NHS Trust v Bland  AC 789.
“It is established that the principle of self determination requires that respect must be given to the
wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to
consent to treatment or care by which his life would or might be prolonged, the doctors responsible
for his care must give effect to his wishes, even though they do not consider it to be in his best
interests to do so. ... To this extent the principle of the sanctity of human life must yield to the
principle of self determination ...... and, for present purposes perhaps more important, the doctor’s
duty to act in the best interests of his patient must likewise be qualified.” (per Lord Goff of
Chieveley at p.864).
Capacity to Consent
Lord Donaldson MR in Re T 
The key to autonomy
The right to decide one´s own fate presupposes a capacity to do so.
Every adult is presumed to have that capacity, but it is a presumption which can be rebutted.
This is not a question of the degree of intelligence or education of the adult concerned.
What matters is that [you] should consider whether at that time he had a capacity which was
commensurate with the gravity of the decision which he purported to make.
The more serious the decision, the greater the capacity required.
If the patient had the requisite capacity, [you] are bound by his decision. If not, [you] are free to
treat him in what [you] believe to be his best interests."
Capacity is determined by a test of understanding
Capacity is determined by a test of understanding
Re C  and Re MB (Caesarean Section)  (CA)
Every person is presumed to have the capacity to consent to or to refuse medical treatment
unless and until that presumption is rebutted.
A competent woman who has the capacity to decide may, for religious reasons, other
reasons, for rational or irrational reasons or for no reason at all, choose not to have medical
intervention, even though the consequence may be the death or serious handicap of the
child she bears, or her own death.
Irrationality is here used to connote a decision which is so outrageous in its defiance of
logic or of accepted moral standards that no sensible person who had applied his mind to
the question to be decided it could have arrived at it.
It might be otherwise if a decision is based on a misperception of reality (e.g. the blood is
poisoned because it is red).
Such a misperception will be more readily accepted to be a disorder of the mind.
Although it might be thought that irrationality sits uneasily with competence to decide,
panic, indecisiveness and irrationality in themselves do not as such amount to
incompetence, but they may be symptoms or evidence of incompetence.
The graver the consequences of the decision, the commensurately greater the level of
competence is required to take the decision.
A person lacks capacity if some impairment or disturbance of mental functioning renders
the person unable to make a decision whether to consent to or to refuse treatment. That
inability to make a decision will occur when
the patient is unable to comprehend and retain the information which is material to the
decision, especially as to the likely consequences of having or not having the treatment
the patient is unable to use the information and weigh it in the balance as part of the
process of arriving at the decision.
If a compulsive disorder or phobia from which the patient suffers stifles belief in the
information presented to her, then the decision may not be a true one.
"One object may be so forced upon the attention of the invalid as to shut out all others
that might require consideration."
“Temporary factors" confusion, shock, fatigue, pain or drugs may completely erode
capacity but those concerned must be satisfied that such factors are operating to such a
degree that the ability to decide is absent.
Another such influence may be panic induced by fear.
Again careful scrutiny of the evidence is necessary because fear of an operation may be a
rational reason for refusal to undergo it.
Fear may also paralyse the will and thus destroy the capacity to make a decision
In problematic cases the capacity of the patient to accept or refuse treatment must be
assessed as a priority
The issues should be addressed if possible by a consultant psychiatrist approved under
section 12(2) of the Act, who should also assess whether the patient is incapable.
The Incapable Patient
The consent of an incompetent patient is not a defence to trespass to the person
Royal warrant for the exercise of parens patriae jurisdiction over adults was removed
following the MHA 1959
Courts no longer have the right to consent on behalf of an incompetent adult
Justifying Treatment Without Consent
F v West Berkshire HA  2 AC 1
As no-one could consent then the decision to proceed had to be left to the person in charge
of her care acting in accordance with the standards laid down by the House of Lords
Treatment immediately required to save life or prevent serious deterioration in the patients
Applies in emergency situations where the patient is incapable
It is widely recognised in civil law that there are circumstances in which acting out of
necessity legitimates an otherwise wrongful act
Note however Lord Goff in Re F at pge 73
Officious intervention cannot be justified
When another more appropriate person is available & willing to act
When it is contrary to the known wishes of the individual (based on the objective
reasonable man test)
A wider view of the care and treatment an incapable person needs
Lord Goff in Re F 
When the state of affairs is permanent of semi permanent [care] may include such
humdrum matters as routine medical or dental treatment even dressing and undressing and
putting to bed
Incapable adults and informal admission
R. v Bournewood Community and Mental Health NHS Trust Ex p. L  3 W.L.R.
1983 Act s.131(1) identical terms to the Mental Health Act 1959 s.5(1), enacted in order to end
the assumption that patients had to be detained compulsorily unless they communicated a
positive wish for treatment and to replace it with the offer of care, without deprivation of
liberty, to those who needed it and did not resist it.
Accordingly, the court had been wrong to hold that s.131(1) was restricted to those patients
A hospital was entitled to treat and care for patients admitted under s.131(1) who were
incapable of consenting on the basis of the common law doctrine of necessity.
B's actions had been in L's best interests and, to the extent that they might otherwise be
regarded as infringing L's civil rights, were justified by the doctrine of necessity.
Protection from unnecessary delay
Not usually necessary or even desirable to go to court
Courts will reject a summons if they regard it as a waste of the court’s time – Re JT 
Diagnostic procedures are included and are therapeutic – H (Mental Patient: Diagnosis),
Non therapeutic treatment should seek judicial approval as a sign of good practice
.. Involvement of the court not strictly necessary … nevertheless highly desirable as a
matter of good practice – Re F 
The limit is set at treatment whilst patient is incapable - autonomy returns with competence
Defining a Best Interest
Not judicially defined
Very broadly defined and largely left to a doctor acting in accordance with a respected body of
Most controversy comes in non therapeutic cases
Y (Mental Patient: Bone Marrow Donation),
S (Adult Patient) Sterilisation: (Patient’s Best Interests) 
A (Mental Patient : Sterilisation) 
If a respected body of professional opinion holds that the patient has no best interest in continuing
The state has fulfilled its positive obligation under article 2 ECHR and treatment may be with held
NHS Trust A v M 
Thou shalt not kill but need not officiously strive to keep alive
Consent and the Mental Health Act
Part IV MHA 1983
Inpatient treatment for mental disorder when detained
S63 MHA 1983
S57 Treatment requiring consent and a second opinion
S58 Treatment requiring consent or a second opinion
Lack of capacity or valid refusal triggers second opinion
Cannot be used for unrelated physical condition
St Georges NHS Trust v S 
Minors Under 16 years
Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and
Social Security  AC 112
House of Lords
a girl under the age of 16 had the legal capacity to consent to medical examination and
treatment, including contraceptive treatment, if she had sufficient maturity and intelligence to
understand the nature and implications of the treatment;
Minors 16 - 18 years
s.8 Family Law Reform Act 1969
‘Consent by persons over 16 to surgical, medical and dental treatment.—
(1) The consent of a minor who has attained the age of sixteen 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.
(2) In this section “surgical, medical or dental treatment” includes any procedure undertaken
for the purposes of diagnosis, and this section applies to any procedure (including, in
particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies
to that treatment.
Parents Can Continue To Consent
s8(3) Family Law Reform Act 1969
nothing in this section shall be construed as making ineffective any consent which would have
been effective if the section had not been enacted
a mischief clause
parents can continue to consent up until the minor is eighteen
Gillick competent children
Interpretation of yield by the Court of Appeal has been that the rights of the parents co exist
with the rights of the child
I now prefer the analogy of the legal ‘flak jacket’ which protects the doctor from claims by
the litigious whether he acquires it from his patient, who may be a minor over the age of 16
or a ‘Gillick competent’ child under that age, or from another person having parental
responsibilities which include a right to consent to treatment of the minor. Anyone who
gives him a flak jacket (ie consent) may take it back, but the doctor only needs one and so
long as he continues to have one he has the legal right to proceed
Master of the Rolls in Re W 
S131 (2) MHA 1983
Child who has attained 16yrs can consent to informal admission.