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Capacity & Consent The Key To Autonomy Consent 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 Assault Battery 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 Autonomy 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 in question. 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 Proxy Consent 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 Common Law 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 Standards Necessity Treatment immediately required to save life or prevent serious deterioration in the patients condition 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) Best Interests 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 who consented. 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), Re, 1993 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 medical opinion 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)  Withholding Treatment If a respected body of professional opinion holds that the patient has no best interest in continuing treatment then 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 Capacity essential 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.
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