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Autonomy, Consent, Capacity Notes

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- MP - Medical Practitioner
- P - Patient
- D - Doctor
- AD - Advance Directive
- [ ] - my own comments/opinions
General Notes
- Interesting links between overriding autonomy in the present to protect your future autonomy, and ADs! (from the Maclean article + Heywood)
o ADs essentially override future autonomy, to protect your present autonomy (at the time you make the AD)
o If you conceive of life as a narrative (Dworkin), then it's justifiable for a person to exercise his present autonomy to limit his future autonomy, since the person whom the person will develop into depends on his current choices, and there's no reason why he can't mould that chapter of his life
 This means (a) not justifiable to intervene with even irrational decisions of an autonomous person (with capacity) that threaten to harm his future autonomy and (b) justifiable to follow ADs!
- This leads on to the STRONG view: that paternalism is a GOOD thing

Honestly the Courts are probably better equipped to decide for us

Think about the number of mistakes we make in our day to day decisions
- Think about autonomy beyond the Patient

E.g. Doctor's autonomy! To withhold treatment

1 Herring, Chapter 4: Consent to Treatment
 It is the patient, rather than the doctor, who has final say about proposed treatment can go ahead

Jackson J, Heart of England NHS Trust v JB: "anyone capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone.
In the absence of consent any invasion of the body will be a criminal assault. The fact that the intervention is well-meaning or therapeutic makes no difference"
 Consent is required, EI there's strong evidence that procedure is the best interests of the patient

St George's Healthcare NHS Trust v S 1998
 Facts: woman in labour was told she needed a C section and that, without such an operation, she and the foetus would die. Operation was carried out against her will
 Held: unlawful. Great weight was placed on the importance of the right to bodily integrity. Not even the fact she and the foetus would die without the operation provided a sufficiently good reason to justify carrying out the C
 It does not follow that if a patient wishes to receive treatment, he/ she must be given it

R (Burke) v GMC
 "Autonomy and the right of self-determination do not entitle the patient to insist on receiving a particular medical treatment regardless of the nature of the treatment"
Consequences of treatment without consent
 Starting point: healthcare professional who intentionally or recklessly touches a patient without his or her consent is committing a crime (battery) and a tort (trespass to the person and/ or negligence)
 To be acting lawfully in touching, professional needs a defence:
o (i) consent of patient

(ii) consent of another person who is authorised to consent on the patient's behalf

(iii) a specific defence in common law or statute
Criminal law and the non-consenting patient
 Technically, a medical professional who intentionally or recklessly touches a patient without consent could be charged with criminal offence of battery

But very rare, usually occurs only when professional was acting maliciously
 Potts v North West Regional Health Authority

Facts: woman consented to the giving of what was described as a routine postnatal vaccination. In fact, it was a long-acting contraceptive

Held: not consented to  battery
 R v Tabaussum

Facts: women agreed to breast examinations on the understanding that they were being performed for educational purposes, whereas they were actually for D's sexual pleasure

Held: deception either as to the nature or quality of the act could negate consent
 Although act of touching was consented to, the quality of the acts was different
 Touching motivated by sexual purposes has different quality than touching for non-sexual purposes
 R v Richardson

2 Facts: R had been removed from the list of the dental register, but continued to provide treatment to the patients. The patients had not been deceived either as to the nature nor identity of the person. Their mistake was as to her attributes

Held: deception as to identity of person providing the treatment can negate apparent consent, but a deception as to qualities of the person does not
 But criticised on basis that a person receiving medical treatment may be more concerned about medical qualification of the individual than their identity
The law of tort and the non-consenting patient
 Proceedings in tort usually brought under negligence. Tort of battery has limited role

Border v Lewisham and Greenwich NHS Trust
 Facts: doctor inserted an IV tube against the wishes of the patient
 Dealt with as a negligence case although it could've been seen as battery
 Maclean: suggests 2 reasons for the preference for negligence

(i) tort of battery has strong overtones of a criminal offence. Where it has been found that tort of battery was committed, very likely a crime has been too

(ii) use of negligence gives judges greater control over the scope of the tortious liability because, they can determine whether or not doctor was acting reasonably
(Bolam test)
 Under tort of batter, if patient was not consenting, liability arises even though docyor may have been acting responsibly
 Important differences between tort of battery and negligence

(i) negligence focuses on question of whether the medical professional acted in accordance with an accepted body of medical opinion, whereas battery focuses on question of whether patient consented
 E.g. where patient agreed to operation after being given limited info:
question of whether information provided was considered appropriate by respectable body of medical opinion VS whether consent in broad terms had been given
 Under battery, protection more focused on protection of patient's rights to make decisions about his or her treatment, while negligence approach is focused on ensuring doctors follow an established body of medical opinion

(ii) negligence: patient must suffer harm, otherwise only nominal damages
 VS battery: no need to show loss because battery will be in itself a legal wrong, but damages will be low
 Ms B v An NHS Trust: when woman was given life-supporting treatment against her wishes, only £100 awarded for the battery

(iii) defence to negligence claim based on non-disclosure of information to show that if fully informed, patient would have consented to the operation he/ she received 
no harm
 Not a defence in a battery claim

(iv) punitive damages can be awarded in a battery case, but not a negligence case
 If punitive damages are awarded, professional will not only have to pay for losses suffered by C, but judge can also award further sum by way of punishment

(v) in a battery case, all of the loss flowing from the operation performed without consent can be recovered in a damages reward, but in a negligence case can only claim foreseeable losses

(vi) battery is committed only if there is a touching. So giving a patient a pill to take might not amount to a battery, but could involve negligence o

3 (vii) contributory negligence is not a defence to a battery, although it is a claim for negligence
Who must provide the consent?
 Adults with capacity

If patient is a competent adult, only they can consent

No doctrine of consent by proxy in English law - e.g. husband having power to decide for wife

But delegated consent is presumably permissible, although there's little legal authority
 i.e. "Doctor, give me whatever treatment you think is best"
o Competent patient can provide an advance directive; i.e. a document that sets out to what treatment a patient would or would not consent to in the event of loss of capacity
 Adults lacking capacity

Where lacking, he or she can be provided with treatment that is in his or her best interests under Mental Capacity Act 2005

There are some ways in which someone, fearing that they are about to lose capacity,
can arrange for somebody to have decision-making power for them
 MCA 2005 enables a competent adult to create a lasting power of attorney,
which enables its done to make decisions on P's behalf when they P loses capacity

Act also allows competent person to create advance decisions rejecting treatment in the event that they lose capacity
 Children lacking capacity

MCA 2005 does not apply to children. If child lacks capacity to consent, then consent can be provided by anyone with parental responsibility for the child
 All mothers have parental responsibility
 Fathers who are married to mother/ registered on child's birth certificate do,
but will otherwise need to enter into parental responsibility agreement with mother or apply to the court for a parental responsibility to residential order

Even if those with parental responsibility do not consent, a doctor may still be authorised to treat child by order of the court or, in an emergency, under the doctrine of necessity
 If issue comes to court, it will take into account parental wishes, but will ultimately make order based on welfare of the child
 Children with capacity

If child is mature enough to consent, then he or she can provide effective consent to treatment

But this doesn't mean those with parental responsibility cannot make decisions for the child
 Doctor can treat a child with capacity who is objective if they have parental consent
What is consent
 Must be a genuine agreement to receive the treatment:
o (i) patient had capacity to consent to the treatment

(ii) patient exercised their capacity to consent to the treatment
The capacity test
 Presumption in favour of capacity

MCA 2005 s 1(2): makes it clear that a medical professional should presume that a patient has capacity unless there is evidence that he or she does not

If case goes to court, burden is on doctor to prove patient lacks capacity o

4 

When deciding, views of medical experts carry "very considerable importance"
 But ultimately for courts, not doctors, to decide

If patient refuses to participate in assessment of capacity  refusal could itself be seen as evidence of lack of capacity, although may be insufficient on its own
The general test of capacity

S 2(1) MCA 2005: "A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain"
o S 3(1): explains what is meant by a person being unable to make a decision for themselves
 If he is unable to -
 (a) to understand the information relevant to the decision,
 (b) to retain that information,
 (c) to use or weigh that information as part of the process of making the decision, or
 (d) to communicate his decision (by talking, using sign language or any other means)
The 'generous' approach to capacity

Baker J, PH and A Local Authority v Z Limited & R: warned against taking too strict an approach
 "courts must guard against imposing too high a test of capacity to decide issues such as residence because to do so would run the risk of discriminating against persons suffering from a mental disability"
o Jesse Wall and Herring
 "It is a terrible thing to be assessed as lacking capacity when you do not - to have others make decisions on your behalf and set aside your own wishes based on what they think is in your best interests. You lose control over your life. You are no longer in charge of your destiny.
It is a terrible thing to be said to have capacity when you do not - to be left to cause yourself and those you love great harm on the basis that you know what you are doing and you are making your own choices, when in fact your decisions are not really yours. To have others harm you and to be told no protection is offered because you have chosen this harm, even though it is against your deepest values, is horrific."
 Not obvious that wrong done to a person who is incorrectly assessed as not having capacity is worse than wrong done to a person incorrectly assessed as having capacity
Who has burden of proving consent?
o If criminal charge: prosecution must prove beyond reasonable doubt that V didn't consent

Position in civil proceedings is unclear
 Limited judicial discussion suggests that consent is a defence that a medical professional may raise to what will otherwise be a tort, so it's therefore for the medical professional to prove that there was consent
Issue-specific capacity

Capacity is assessed in an 'issue specific' way: question is always whether a person has capacity to decide a particular question

A NHS Trust v X: X was found to lack capacity to make decisions about treatment for her anorexia nervosa, but have capacity to make decisions about drinking alcohol
 Person shouldn't be dismissed as "simply incompetent"
5 

The diagnostic test and the functional test

A Local Authority v TX: test of capacity in s 2(1) MCA involves a "diagnostic test" and a
"functional test"
 Diagnostic test: must be found that person has impairment or disturbance in the functioning of the brain
 e.g. conditions associated with some forms of mental illnesses,
dementia, significant learning disabilities, long term effects of brain damage, physical or medical conditions that cause confusion,
drowsiness or loss of consciousness, delirium, concussion, symptoms of alcohol or drug use
 Functional test: as a result of the disturbance, a person must be unable to make the decision

Bartlett: this breaches the UN Convention on the Rights of Persons with Disabilities
 Art 12(2) provides that people with disabilities may enjoy legal capacity "on an equal basis with others in all aspects of life"  but yet if we have 2 people with delusions, the one whose delusion is a result of a mental disorder is treated differently
Enabling someone to have capacity

S2(2) MCA 2005: person should not be treated as lacking capacity "unless all practical steps to help him" each capacity "have been taken without success"
Ensuring capacity assessments are not prejudicial

S 2(3) MCA makes special provision to ensure that patients are not assessed as lacking capacity in a prejudicial way
 Lack of capacity can't be established merely by reference to (a) a person's age or appearance or (b) a condition of his, an aspect of his behaviour, which might lead others to make unjustified assumptions about him
 Designed to ensure that a patient who appears unkempt or disordered isn't assessed as lacking capacity purely on that basis

WBC Local Authority v Z
 Facts: part of the evidence to support a claim that a young woman lacked capacity was that her bedroom was "in complete disarray, with numerous items strewn on the floor and every surface"
 Held: judge placed no weight on this; state of the bedroom was "a familiar sight to a parent of an adolescent or young adult"
Capacity: understanding the relevant information

England and Wales doesn't recognise "doctrine of informed consent", which states that a patient can provide effective consent only if given the relevant and necessary information to make a proper decision
 All that is required is that the patient must understand in "broad terms the nature of the procedure which is intended"
o 2 distinctions
 (1) patient didn't consent because he did so only on basis of false or inadequate information (tort for battery or negligence) VS did consent, but medical professional was negligent in not informing patient of all the risks
(only negligence)
 (2) lack of understanding means they lack mental capacity VS patient has mental capacity but has been deceived by the doctor about the procedure
 Appleton v Garrett: dentist was found to have deliberately misinformed his patients in order to persuade them to agree to unnecessary treatment for financial gain  latter

6 

To fall under MCA, patient must fail to understand the "nature,
purpose and effects of the proposed treatment"
o Macur J, LBL v RYJ: "it is not necessary for the person to comprehend every detail of the issue… it is not always necessary for a person to comprehend all peripheral details"
Court must decide whether patient understands enough to make the decision

A NHS Trust v K: K needed to have an operation because she suffered from cancer. She suffered a mental disorder and refused to consent, because she did not accept that she had cancer, a key piece of information

Re C (Adult: Refusal of Treatment) 1994
 Facts: C was a patient who had been diagnosed as suffering from paranoid schizophrenia. One of his delusional beliefs was that he was a great doctor who had a 100% success rate with damaged limbs.
He suffered an injury to his foot, which became gangrenous. He was told that there was an 85%
chance he would die without an amputation. He opposed the treatment, believing that God did not want him to have his foot amputated. Although he accepted that the doctors believed that he was going to die, he did not agree with them
 Thorpe J: there are 3 aspects to competence - (1)
comprehending and retaining treatment information; (2) believing it; (3) weighing it in the balance to arrive at a choice
 Held: all 3 fulfilled. Doctors not permitted to operate without consent, even if it would led to patient's death
 Comment: crucial that C understood doctor's diagnosis and their proposed treatment

Contrast with R (N) v Dr M, A Health Authority Trust and Dr O
 Facts: C believed that doctors wanted to give her drugs in order to induce to believe she was a man. In fact, it was anti-psychotic medicine
 Held: lacked capacity because she didn't understand the nature of the proposed treatment

PC v City of York Council 2013
 Facts: PC was woman with significant learning disabilities, who married NC whilst he was imprisoned for serious sexual offences. After NC was released, they intended to cohabit. Accepted that NC
posed risk to PC given his history of violence against women. Local authority sought order that PC lacked capacity to agree to cohabit
 Held: it had to be shown she understood what cohabitation with NC (rather than cohabitation in general) would be like. PC refused to believe that NC
had been violent in the past and that he posed a risk


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