Introduction
It is a fundamental principle of medical law and ethics that, before treating a competent patient, a medical professional should get the patient’s consent. In doing so, the medical professional does not commit battery but it also shows the patient has “capacity” which can be expressed in a competent manner. However, this essay will examine any circumstances in which it is permissible to treat patients without their consent. The Mental Capacity Act (MCA) 2005 gives guidance through principles, in particular, medical treatment decisions which help the courts establish whether the best interests of patient’s has been met.
Incapacitated Patients
When a patient lacks capacity to make decisions relating to their treatment the medical professionals will act in the patient’s best interest. In doing so, the decision-makers will do their best and put themselves in the place of the individual to determine what the patient would do by examining the manner towards any proposed treatments.
Adults Lacking Capacity
In accordance to the MCA 2005, a patient who lacks mental capacity can be provided with treatment that is expressed through his or her best interest. For example, if an individual is unconscious due to an accident the doctor treating the patient can treat the individual without consent lawfully. If the patient was to charge the doctor later on the courts would establish a defence as “necessity” . As Lord Goff states, in the case of Re F (Mental Patient: Sterilisation) “there is no point in waiting to obtain the patient’s consent…the doctor must then act in the best interests of his patient, just as if he had received his patient’s consent”
However, what happens when the patient is incompetent for a long-term? If the individual knows they are about to lose capacity, a competent adult (P) can create a lasting power of attorney (LPA) which enables its done (that is, the person appointed to act under the LPA) to make decisions on P’s behalf when P loses capacity . In addition, the Act allows competent people to create advance decisions rejecting treatment in the event that they lose capacity .
Children Lacking Capacity
Due to their age, there is a presumption that minors are incapable of consenting to medical treatment therefore up until the age of sixteen anyone with parental responsibility can consent on his or her behalf. In addition, the MCA 2005 does not apply to children .
In some circumstances the individual with parental responsibility does not consent to the medical procedure therefore a doctor could potentially still authorize to treat the child by an order of the court or through emergency under the doctrine of necessity .
In the case of Gillick v West Norfolk & Wisbeck Area Health Authority , Lordship Fraser questioned what a patient must understand in order to have capacity to consent to treatment. This leads to the “Gillick-competent” Minor principle. Prior to this case it was uncertain if a child’s competence or age would be conclusive in allowing them to consent. However, it is sufficient for the doctor to obtain only the minor’s consent. So, what would happen if the minor refuses to give their consent to treatment that the parents would like to have? Would the minor be treated as an adult due to the competence levels? In this instance, this would create legal dilemma and confusion as a child mature his age could potentially have a further say in treatment involving his or her parents.
Best Interests
Section 4 of the Mental Capacity Act 2005 deals with the way in which “best interests” must be determined through principles that are lawfully assessed. When deciding the best interest of the individual who lacks capacity, the decision makers should take into consideration all factors that would be deemed as reasonable to a wide audience rather than just specific people who would be classed as important. The decision maker must not act or make a decision based on what they would want to do if they were the person who lacked capacity .
According to the case of Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant ) , Baroness Hale stated “any treatment which the doctors do decide to give must be lawful. The question for the Court of Protection is not whether it is lawful to withhold treatment, but whether it is lawful to give it, since without consent (or a best interest’s decision on behalf of an incapacitated treatment) medical treatment of any sort cannot be administered”. As seen in the statement along with the essay, the purpose of the best interest test is to consider many wider factors rather than being objective towards what “the reasonable patient” would do.
The Control of Infertility and the Incompetent
This section is concerned with the practice of sterilising mentally incompetent woman through the following principles adopted in relation to the practice:
- It is desirable in the interest of society as a whole to protect the gene pool (the “eugenicist” argument) or to save the costs of caring for offspring whose mothers are unable to do so.
- It may be desirable in the “best interest” of the women concerned.
- It is undesirable and violates the right to motherhood that all women enjoy.
According to the commonwealth approach courts in Canada and Australia have adopted a more principled and stringent approach to sterilisation cases. In some analysis the English courts have been criticised for being too focused on the woman’s “best interest” as vague and indeterminate.
Adequate Safeguard
When discussing “contraceptives” sterilisations the parents of the incompetent patient are present therefore it shows adequate safeguards are in place to ensure the patient’s best interests are met. The case of Re D (A Minor) (Wardship: Sterilisation) (1976) highlights when the parents of an incompetent child’s best interest is too pro-sterilisation.
Conclusion
To conclude, there are a number of criticisms when it comes to the “best interest” principle which could potentially cause an ethical dilemma. Despite the strong argument in favour of a flexible concept of best interests the overall emphasis is on the wording “best interest”. Many people have expressed that the phrase is vague therefore it leads to a wide range of statutory interpretation.
According to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) everyone should be assessed as having a “capacity”. This would include the individuals who lack capacity as well. A potential legal dilemma that could arise from this would be the English courts adopting a “will and preference” approach towards every person. This would mean if an individual has mental impairment their will and preference must be respected.
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