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Consent II Introduction Learning Objectives: Understand the operation of giving consent within a medical context. Learning Goals:
* What happens at law when a patient cannot give consent?
* What factors determine whether a patient has given consent voluntarily?
* The principle of patient autonomy means that a competent adult patient has the right to refuse medical treatment, even if their reasons are bizarre, irrational or nonexistent, and even if refusal might lead to death.
* Under the Mental Capacity Act 2005, adults who lack capacity should be treated in their best interests.
* Parents normally give consent to their children's medical treatment. If there is a dispute, or the treatment is controversial, the court has wide powers to authorise the medical treatment of minors in their best interest.
* Mature minors can acquire the right to consent to treatment, but they do not necessary have the same right to refuse treatment.
* The patient's consent must have been given voluntarily; that is, it must not have been vitiated by undue influence or duress.
The consent requirement For consent to be valid, there must be a capacity to consent, a voluntary consent, and an understanding in broad terms of what is being consented to (which was dealt with last week). Consent has a distinct moral, clinical and legal function. Civil Law Provided a person consented to the treatment she received, there could be no action in tort for unlawful touching. An action in battery would be possible only if the patient can establish that her apparent consent was not real, perhaps because she was not what she was consenting to,or because she was coerced into giving consent. In practice, such actions are rare. Form of consent Consent to medical treatment does not need to be in writing (except where required by statute). For most routine medical treatment the patient's consent can be inferred from their behaviour. In some ways, the patient seeking medical treatment shows their willingness to be treated. Where the treatment is surgery, it is good medical treatment (albeit not a legal requirement) to obtain the patient's consent in writing. This consent is not a contract between the doctor and patient. The patient's consent must be ongoing throughout the treatment, and the patient is free to withdraw their consent at any time. Signing a consent form does not affect the patient's right to refuse treatment.
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The Principle of Autonomy The principle that a competent adult must not be treated without consent protects both her autonomy and integrity. It is settled law that, if an adult patient has capacity, they are free to refuse medical treatment, even if not in their best interests (Airedale v Bland). Indeed, these rights to refuse even exist where the reasons are bizarre, irrational or nonexistent (Re T). In addition to the common law, a patient's right to make their own decisions is also protected by the Human Rights Act 1998. Article 3 incorporates a right to be free from inhuman and degrading treatment. Article 8 (respect for private and family life) incorporates a right to make important decisions about what happens to one's body. Article 2 also provides that everyone's life shall be protected by law. Often the question for the courts is whether it would be justified and proportionate to overrule the patient's rights under Articles 3 and 8 to reinforce their right under Article 2. Recall that it was previously discussed the criticisms of respecting autonomy, especially where the patient's refusal to get treatment affects people other than the patient. At times then, there may be a tension between the patient's legal rights and their moral obligation to others. Taking this even further, Glick argues there might be dangers in respecting the shortterm autonomy of a frightened and distressed patient: they are prone to making hasty tragic decisions which they come to regret later after careful consideration. Even the most devoted advocates of autonomy must recognise that a patient who is frightened and distressed may not be fully autonomous. In this regard, recognising individual vulnerabilities at certain times does not result in unwarranted reversion back to paternalism. Pregnant woman's autonomy In Re T, Lord Donaldson noted one possible exception to the right to refuse treatment: the case where the woman is pregnant and the refusal of treatment could lead to death of the foetus. This situation arose in Re S, where S refused a caesarian on religious grounds. S's competence was not in doubt. An emergency application was made, and after an ex parte hearing, a declaration was granted that the operation be lawful. However, this case is not of any weight any more, as subsequent cases have confirmed that pregnancy does not diminish the competent adult's right to refuse unwanted medical treatment. From the comments of Judge LJ in St George's Trust v S, the unborn foetus is not a separate person from the mother, and so its needs for medical assistance do not prevail over the mother's autonomy. Her right is not reduced or diminished merely because her decision appears morally repugnant. Thorpe, writing extrajudicially, has suggested that it may be in practice easier for an appellate court to confirm the primacy of autonomy, after the operation has been carried out successfully, than it was for the judge who had to make that decision in the heat of the moment, when lives were in immediate danger.
Incapacity If a patient has capacity, then, unless she has been sanctioned under the Mental Health Act 1983, her refusal of treatment is decisive. In contrast, if a patient lacks capacity, they can be treated without consent. In this regard, there are two possible approaches to the assessment of capacity:
1. According to the status approach, some categories of patients lack capacity because of their status (e.g. age) regardless of their actual decision making ability. On this approach, all under 18s would be treated as though they lacked capacity.
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2. The functional approach focuses on the individual's capabilities. On this approach, a child's capacity to make a particular decision would have to be individually assessed. As argued by Kennedy, it is the functional approach which best promotes the patient's self
determination (as the status approach denies the individuality of the patient, as well as the decision specific nature of capacity). English law adopts a combination of the status and functional approaches. All adults are presumed to have capacity, and all children under the age of 16 are presumed to lack capacity. The difference between adults and children is therefore a shift in the burden of proof. One exception to this hybrid approach is when children want to take certain lifethreatening decisions, it is virtually impossible for them to establish they are competent. In reality, capacity is a question of degree. Although patients at either end of the spectrum are easily identified, towards the middle, it gets harder to explain. The challenge, as explained by Gunn, is to choose the right level to set as the gateway to decision making and respect for persons and autonomy. Questioning a person's capacity tends to happen in one of two scenarios: 1
if the patient belongs to a group whose members often lack capacity e.g. person suffering Alzheimer's disease.
3. if the patient's doctor believes the decision of the patient is seriously misguided or irrational. The irrationality here does not justify a finding of incapacity, but just puts doctor's on guard as to capacity. Of course, if health care professionals are unlikely to question a patient's decision making capacity when they have consented to a proposed treatment, the pool of patients who are judged to lack capacity will be smaller than it would be if all patients' decision making capacity had to be scrutinised. Raymond et al. assessed the decision making capacity of acutely ill medical inpatients and found that almost half of them lacked capacity, but since none of them refused treatment, the doctors had taken their acquiescence to indicate valid consent. Capacity of Adults The Mental Capacity Act 2005 (MCA) came into force in 2007. The Act covers much more than just the medical treatment of people who lack capacity. It also covers the management of their financial affairs, and decisions about where they should live also come within its scope. Fundamentally, the MCA operates on communitarian beliefs, and valuepluralism (cf. the law's libertarian approach re patients who have capacity). From the perspective of Coggon & Miola, it does a better job of protecting autonomy (by emphasising more on patient understanding) than the rules re informed consent. A couple of other points to note about the MCA:
* the assumption of legal capacity is the overarching principle and the essential precondition of all treatment decisions;
* the duty to support patients and maximise participation, running alongside the assumption of legal capacity, indicates the importance of maximising an individual's ability to reach a decision;
* implicit in the model is the desire to limit unnecessary intervention; and
* by encouraging patient participation, the model acknowledges that individuals have views that matter, despite the fact they might lack capacity human dignity as empowerment.
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Principles of the MCA Section 1 of the MCA sets out five statutory principles which capture the most basic and important assumptions underpinning the statutory scheme, namely that people who lack capacity should have their interests protected and be helped as far as possible to make or take part in decisions affecting them: "1(1) The following principles apply for the purposes of the Act: (2) A person must be assumed to have capacity unless it is established they lack capacity (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (4) A person is not to be treated as unable to make a decision merely because they make an unwise decision (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interest (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of actions" The Act applies to persons over the age of 16. Young people aged 16 and 17 are in a slightly curious position the Act may apply to them, if they lack capacity, but the presumption of capacity that applies to them is slightly different from the more robust presumption which applies to over 18s. Definition of incapacity (a) What is incapacity The Act preserves the common law presumption of capacity. Under section 2 of the MCA, there is a two stage test for capacity: "(1) For the purposes of this Act, 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'. (2) It does not matter whether the impairment or disturbance is permanent or temporary" Under section 2(1) it must first be established that the person is suffering from an impairment of, or disturbance in the functioning of the mind or brain. This threshold means that someone will not fall within the provisions of the Act unless they are suffering some sort of mental impairment. The Code of Practice suggests a wide variety of conditions will be covered e.g. dementia, learning disabilities, delirium, concussion following head injury etc. The Code of Practice also identifies temporary factors which may impact on a person's ability to make decisions e.g. acute illness, severe pain, distress after death or shock, and notes that because a patient ages with treatment does not mean they have capacity to make the decision.
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Once this threshold test is met, it must be then worked out whether the patient is able to make a decision for themselves. Section 3(1) sets out what is meant by being 'unable to make a decision' (representing a negative affirmation of autonomy): "(1)For the purposes of section 2, a person is unable to make a decision for himself if he is unable
(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 (whether by talking, using sign language or any other means). (2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision." Note also: in York City Council v C, McFarlane LJ thought the proper approach to applying Sections 2 and 3 of the MCA was to firstly consider whether the patient was unable to make a decision for themselves in relation to the particular matter, and then to establish a causative link between that and whatever mental illness they were suffering. The need for this logic is brought to the fore in cases where the patient might have capacity to make decisions in a number of different aspects of their lives, but in the particular aspect of issue, it is argued they lack capacity. There, the judge will need to establish why they lack capacity in relation to that particular area, despite their general capacity in other areas, and then to delineate why and how their mental impairment is insufficient to rob them of capacity in the general areas, but sufficient to rob them of capacity in this particular area. This stage is essentially a statutory version of the three stage test at common law, set out by Thorpe J in Re C. Here, C suffered from chronic paranoid schizophrenia. His doctor thought that, unless his dangerous leg was amputated, C had a 85% chance of death. C said he would rather die with two feet than live with one. He had delusions that he had an international career in medicine, during which he never lost a patient. C's solicitor sought and was granted a declaration that no amputation should take place without C's consent. Thorpe J, in considering C's capacity, set out the following test: the ability to comprehend and retain treatment information; believing in treatment information; and weighing it in the balance to arrive at a choice. Applying those tests, Thorpe J thought that C did not lack capacity. Because this test of capacity is decision specific, it should mean that capacity ought be reassessed at every point where the patient makes a decision. This however would be incredibly time
consuming, and places significant reliance on the person making the judgement of capacity. Relevantly, the following points should be noted about section 3 of the MCA:
* Whether the patient can understand 'information relevant to the decision' only requires them to have a broad general understanding of the benefits and risks of treatment, rather than a more
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detailed understanding of the relative risks of different types of treatment (per Peter Jackson J in Heart of England NHS Foundation v JB). This is consistent with protecting autonomy, as it is important that patient's are not disqualified from making decisions for themselves because they cannot understand all of the possible ramifications of a relatively simple decision (this is odd though, because if a person is presumed with capacity, then nothing is required of them by way of knowledge). In A Local Authority v A, Bodey J went on to say that the test for capacity should be applied so as to ascertain the woman's ability to weigh up the immediate medical issues surrounding treatment.
Although note here also, the distinction between actspecific and personspecific circumstances, where in the former case, general knowledge may suffice, but in the latter case, more specific knowledge may be required. For example, in York City Council v C, it was held that although P, who was suffered from severe learning disabilities, had capacity to decide to marry NC, a convicted sexual assault criminal, and had capacity to understand the obligations of marriage, it does not necessarily mean she had the capacity to understand the consequences of cohabitation with NC after his release from prison. This is because the first two decisions were act specific, whereas the latter decision was person specific, and it cannot be assumed that P had capacity to understand the risk that NC presents to her, and whether such a risk should be run.
* It is sufficient if the person can retain information temporarily, as indicated by section 3(3) of the MCA. The Code of Practice suggests that efforts should be made to help people to retain information e.g. written, audio, video etc.
* The need for the patient to be able to weigh up the information themselves as part of a decision making process may be impaired if they are the subject of 'overpowering control' such that their own free will cannot be exercised (per Bodey J in A Local Authority v A). The problem with this interpretation is that it suggests undue influence may not only vitiate consent, but also justify a decision that someone lacks capacity. In this regard, the MCA is somewhat biased against absolute values (as will be seen below in the cases of anorexia, but interestingly enough, cf. Kings College NHS Foundation Trust v C). To the extent that the court denies that the individual has capacity because of an absolute value, there is an imposing by the court of a view of what is the patient's 'true' autonomy (which is somewhat contrary to the idea of autonomy).
There is a parallel concern here that in society's commitment to value pluralism may prevent us from detecting irrational and nonautonomous decisions (the counterbalance here is that if there is a decreased commitment to value pluralism, there may be a risk of increased false positives, and a rise of paternalism). Here, consider also Archard's view that adults should not be allowed to act if they do so against their 'best interests' and with risk of significant harm.
By the same token however, there may be morally relevant reasons why a person acts irrationally, such that it would be immoral to compel them to act otherwise. For example, the patient may have experienced past tragic failures, or past personal family experiences. The patient may just distrust doctors, or simply be afraid of them. There may just be too much advice and it is simply not practical for them to follow it all. They may be under other stresses (e.g. demands of work, children, social circumstances etc.). In this regard, Brock and Wartman reinforce that even truly irrational decisions are not sufficient to justify a finding of incapacity.
* The communication limb of the section 3(1) test was not mentioned by Thorpe J in Re C because it was not an issue there. However, generally at common law, if a person cannot communicate,
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there is no option but to treat them as lacking capacity. The Code of Practice confirms this only applies to patients such as those suffering from coma or lockin syndrome i.e. those who can't even communicate by blinking etc. Note: the court has an inherent jurisdiction which existed for vulnerable adults who, while not suffering from any mental incapacity within the definition of the MCA, were incapacitated from making decisions as a result of constraint, coercion, undue influence or other vitiating factors (per MacFarlane LJ in Re L). b) The right to take unwise or unreasonable decisions While the statutory principles under the MCA preserve the patient's right to take unwise decisions, there is an ambiguity. On the one hand, provided that a patient satisfies the test for capacity, it does not matter if the decision she wants to take is irrational or eccentric, provided it is within legal limits e.g. no claimright, and not in breach of criminal, civil or public law (note: Coggon would argue that this is also a manifestation of the 'best interest' standard i.e. competent individual best understands their own best interests). On the other hand, it is sometimes difficult to distinguish between a person's bizarre and irrational wishes, which must nevertheless be respected, and a person's inability to use and weigh up information, which means they fail the capacity test. When assessing capacity, the critical question is whether someone can make a rational decision, not whether they can make a sensible or responsible decision. In Mental Health Trust v DD, a pregnant woman with a complex obstetric history, learning difficulties, and an autistic spectrum disorder, Cobb J explained he had to review with particular care whether DD's decision making is simply unwise, or if it 'lacked the essential characteristic of discrimination which only comes when the relevant information is evaluated, and weighed'. In that case, Cobb J was satisfied that DD did in fact lack capacity. In contrast, in Re SB, the treating psychiatrist was adamant that a pregnant woman with bipolar disorder did not have capacity, as a result of her paranoid and persecutory beliefs. Holman J disagreed and found that even if her reasoning was skewed by paranoia, she was able to make the decision to terminate her pregnancy. Holman J noted that even if aspects of the decision making are influenced by paranoid thoughts, the patient was nevertheless able to describe and genuinely holds a number rational (not necessary good) reasons for her decision. Further, consider the case of Kings College NHS Foundation Trust v C, where C had, after taking an overdose of paracetamol, suffered kidney failure and refused dialysis. Relevantly, C had sought to live her life entirely and unapologetically on her own terms, revolving largely around her looks, men, materials and living the high life. In particular, during her life, C placed a high premium on her youth and beauty, and living a life that 'sparkles'. Two experts thought C was unable to weigh information about her prognosis in order to make a choice, and that she therefore lacked capacity. McDonald J disagreed. He found that C did understand and believe her prognosis, but that she just chose to give no weight to it within the context of her own values and outlook. As she had capacity, she had the right to refuse dialysis. C died two weeks later. Where do these cases leave patients with anorexia? The Code of Practise says that sometimes people can understand information but an impairment or disturbance stops them from using it. For example, a person with anorexia may understand information about the consequences of not eating, but their compulsion to not eat may be too strong for them to ignore (e.g. an absolute value). In A Local Authority v E, a 32 year old anorexic whose death was imminent refused to eat for be fed. Despite describing E as being fully aware of her situation and intelligent and charming, Peter Jackson J held she lacked capacity, and that feeding her against her wishes was in her best
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