Autonomy and Consent Flashcards
What happened in - Bland [1993]
if P has capacity their wishes must be respected
shows the laws prioritisation of respect for autonomy over sanctity of life re best interests
what happened in - Re B [2002]
P had capacity and therefore their decision to refuse ventilation needs to be complied with regardless it would ultimately lead to her death
What happened in - Brady (2001)
MH P was hunger striking and it was held that ANH could be provided as the publics interest prevailed over P’s right to self determination in these circumstances
what happened in - Robb [1995]
right to refuse treatment and to self determination isn’t diminished by incarceration
what happened in - Re W (2002)
Prisoners with capacity are still entitled to refuse life saving treatment
Can prisoners be forced to have medical treatment
no just because someone is incarcerated doesn’t mean the state can infringe on their right to self determination
what happened in - Re T [1992]
P’s are allowed to refuse treatment on the basis of religious reasons
DE [2019]
Jehova’s witnesses with a learning disability was able to be forced to have a blood transfusion as he did not have capacity
what happened in- Wye Valley v B [2015]
refusing treatment for religious reasons does not infer a lack of capcity
what happened in - RC [2014]
Jehovas witnesses can used AR’s to refuse blood transfusions
AR’s
advanced refusals
can religious beliefs be used to make decisions re medical treatment
yes, physical mental treatment can be refused for any reason and on any basis including religious (Re T 1992) so long as the person has capacity (DE 2019)
refusing medical treatment on the basis of religious belifes cannot be used to infer a lack of capacity (Wye Valley v B 2015)
what was held in - Rochdale Healthcare Trust v C [1997]
a woman in labour due to the ‘pain and emotional distress’ cannot be said to have capacity to make decisions re life saving treatment
what was held in - Re MB (1997)
woman’s right to self determination is not removed in favour for the rights of an unborn child during birth, until the ‘moment of birth’ the child has no seperate interests to the mother
what are a womans rights during birth
although a woman is held not to have capacity during birth (Rochdale v C 1997) her life and best interests are to be preferred over that of the child until the ‘moment of birth’ (Re MB 1997)
What happened in - Re S [1992]
C-section could be performed in the best interests of P without her consent, as her mental health issue prevented her from having capacity
what happened in - Tameside and Glossop v CH [1996]
Woman with scitzophrenia was forced to undergo a C section as treatment for her mental disorder so she could resume taking her medication
can people with mental health disorders be forced into having medical treatment
physical medical treatment can be imposed without P’s consent if their detained under the MHA as treatment for their disorder (Tameside and Glossop v CH 1996) or if their held to lack capacity due to their MH condition
what happened in - Norfolk and Norwich v W [1996]
woman who refused to believe she was pregnant was forced to have a C-section
what happened in - Re CA [2016]
woman with learning disability, autism and genital mutilation was scared to give birth and as such was approved for a C section
what happened in - FG [2014]
for pregnant women with Mh disorders cases that relate to more than transient restrain of P or whats in P’s best interests need advanced planing or to be taken to court
What happened in - R v St George [1998]
woman with a history of mild depression but no pressent symptoms was detained under the MHA and forced to have a C-section without her consent was held not to be justifiable as treatment for her disorder and therefore her capacity and express wishes should not have been undermined
JP [2019]
was held lawful to deceive a woman with a Mental disability into having a C-section in her best interests as she had no capacity
What happened in St George v R [2020]
Woman with sever MH condition was held at the time to have the capacity to make the decision to have a C-section, however if at the time of birth she was held to have lost capacity her prior decision could be over ruled and she could be forced to have a natural birth
MCA 2005
Mental Capacity Act
MHA 1983
Mental Health Act 1983
MHA s63
P’s detained under the MHA can be subject to physical health treatment if its considered treatment for their mental disorder, without P’s consent
MCA s2
(1) P is considered to lack capacity when they have an ‘impairment’ or ‘disturbance’ of the ‘mind or brain’ (2) thats permanent or temporary (3) and theres been consideration for (a) P’s age, (b) their condition and behaviour (4) on Balance.
types of physical treatment that has been approved under MHA as treatment for a mental condition (2 types)
Tube feeding
administering anti-psychotics
Can people under the MHA refuse treatment for religious reasons
yes, unlike for other reasons where the MCA normally overules if a P, even one detained under the MHA or held to have no capacity, can still refuse treatment on grounds of religious reasons (RC 2014)
RC [2014]
cannot force a Jehovah’s witness detained under the MHA to get a blood transfusion even after self harming
what are the requirements under MCA s3 for capacity (4 requirements)
understanding information
retaining information
ability to weigh information, and
ability to communicate a decision
MCS s3(1)
P cannot be said to have capacity under MCA s2 if they cant (a) retain ( 3 even for a short period of time) information (4 including (a) forseeable consequences of the decision and (b) failing to make the decision) (b) understand information (c) weigh up information and (d) communicate (2 conventionally or otherwise) a decision,
what happened in - Kings College v C [2015]
Regardless P had a positive prognosis, she could refuse dialyis as she had capacity since it could not be proven on BOP that She couldn’t understand or weigh relevant information
what happened in - local authority v A [2010]
to be said to have capacity P needs to be held to sufficiently understand contraception but not what its like to bring up a child or if it would be likely to be removed from her care
what did P have tp understand re contraception to be held to have capacity in (7 elements) - Local Authority v A
what it does
why its taken - whats its purpose
available options
advantages and disadvantages
side effects
ease of swapping
how effective each option is
what was held in - Re C [1994]
capacity needs to be so reduced by P’s mental illness that they cannot understand the ‘nature purpose and effects’ of their decision
What was held in - KB (1994)
compulsive eating disorders innately impair capacity to make autonomous decisions
do mentally illnesses innately undermine capacity
no, for capacity to be removed by a mental illness it has to impair ability to understand (RE C 1994) with the exception of compulsive eating disorders that innately undermines an individuals capacity (KB 1994)
what was held in - Local Authority v E [2012]
P’s anorexia was said to innately undermine her capacity regardless she had understanding as he desire not to eat overpowered all rational thought
what was held in - Brady (2001)
P was held to lack capacity as his ‘sever personality disorder’ undermined any ability he had to understand and weigh the consequences of a decision
what was held in - NHS v Dr A [2013]
P was held to lack capacity to refuse feeding as his perception that a hunger strike would influence the UKBA to grant him asylum showed a lack of understanding
what was held in - RT v LT [2010]
woman with a learning disability was held to have a lack of capacity as she had a ‘wall of reasoning’ preventing her from weighing the consequences of the decision
what was held in - Re R [1991]
the nature of P’s disorder meant he could never really be considered component and as such he could be administered antipsychotic medication without his consent
what was held in - Re D [1998]
P lacked capacity despite his full understanding because he couldn’t retain the information or weigh the consequences
what was held in - AC, EC, LC [2014]
P’s with fluctuating capacity need their capacity constantly assessed
what was held in - RB Greenwich v CDM [2018]
the nature of P’s diabetics treatment required frequent consent and thus each time it was administered capacity needed to be assessed
what was held in - Re C [1994]
not understanding the ‘nature purpose and effects’ of the treatment meant P cannot have been said to have had capacity
MCA s4(6)
in determining P’s best interests consider P’s (a) past and present wishes and any written statement (b) beliefs and values and any (c) anything else they would’ve considered
MCA s4(7)
in determining P’s best interests consider the views of (a) anyone named by P (b) anyone in involved in P’s welfare (c) any POA and (d) any court appointed deputy
what needs to be consider when determining P’s best wishes (8 things)
P’s past and present views
any written statement by P
P’s beliefs and values
any other facts P would be likely to consider
views of anyone named by P
View of anyone involved in P’s welfare
view of an attorney
view of any court appointed deputy
who’s view needs to be considered in determining what’ in a P without capacity best interets (4 things)
anyone named by P
anyone involved in P’s care or welfare
any attorney
any court appointed deputy
what was held in - W v M [2011]
as P was not in a fully ‘vegetative’ state the principle of sanctity of life prevailed over her best wishes and she couldn’t be taken of life sustaining treatment
what was held in - Aintree v James [2013]
consider clinical objective and subjective factors in determining ‘worthwhile and appropriate’ treatment
what was held in - Avon [2020]
although P lacked capacity as ‘no must mean no’ other methods to preserve his life should be tried
what was held in Bland [1993]
held that it is not murder to withdrawal life sustaining treatment thats in P’s best wishes
what was held in - NHS v Y [2018]
unless there is a dispute re P’s best interests court approval is not needed to withdrawal life sustaining treatment
What was held in - Lamber v France [2015]
not an ECHR art to, right to life, violation to withdrawn AHN
what was held in - Local Authority v A [2010]
woman being pressured by her husband to have a 3rd child whilst she was held not fit to parent the first two would have obtained a injunction however, he agreed to stop
can life sustaining treatment be withdrawn in P’s best interests
yes, court approval is only required unless there is a dispute over what is in P’s best interests
Mazhar v Lord Chancellor [2010]
as there was insufficient evidence that P was a vulnerable adult and there were no exceptional circumstances a court order re his MH could not be made without informing his family
how does medical law safegauard coercion
vulnerable adults, without capacity or with sever handicap, that cannot protect themselves have extra measure in place in the law to prevent them being unduly pressured by 3rd parties
AD
advanced decision
MCA s25
AD to refuse life sustaining treatment, consent to certain treatment, refuse certain treatment, signed and witnessed by P or someone empowered to act on P’s behalf
what was held in - Burke
you can make advanced refusals but not advanced requests
what was held in - Local Authority v E [2012}
if P acts contrarily to their AD , it is considered invalid
what are the important things to know about an AD (3 things)
needs to be signed and witnesses
can refuse in advance but not request
will be overruled if P is acting or indicating they have changed their mind since writing the AD
MCA s10
anyone over 18 can appoint an LPA re medical decisions for if they loose capacity
LPA
Lasting power of attorney
MCA s16
court appointed deputy cab make treatment and welfare decisions when P doesn’t have capacity
Junhke v Turkey (2009)
gynaecological exam of a convicted terrorist was considered ‘therapeutic necessity’ to ensure she wasn’t assaulted and as such was not a violation of her ECHR art 8, right to privacy, and her ECHR art 3, inhumane and degrading treatment, as the state was acting in line with their obligation to ensure the medical welbeing of those they deprive of liberty
what was held in - Herczegfalyy v Austria
medical necessity cannot be used to justify force under ECHR art 3, inhumane and degrading treatment
what was held in - VC v Slovakia
for P with capacity, the forcible sterilisation, a treatment that induces significant distress without ‘therapeutic necessity’ was an ECHR art 3, humane and degrading treatment , breach
what was held in - X v Finland (2012)
P with capacity forcibly undergoing a procedure but not of significant distress is still a violation of ECHR art 8, right to privacy, as it is medical treatment interfering with their personal life unless the treatment is considered necessary in which case it can excused under the ECHR art 8(2) exemption
for cases where a P with capacity is forced to undergo treatment they didnt consent to, what outcomes are available
it is an ECHR art 3, inhumane and degrading treatment violation, if the procedure causes sever distress ( VC v Slovakia)
It is a ECHR art 8, right to privacy, violation, unless considered a medial necessity under the ECHR art 8(2) exemption, if the treatment is not on of sever distress
Public health (control of disease) act 1984
if someone is carrying a notifiable disease they cannot be forced to be treated but they can be forcibly examined or detained
what was held in R v Paterson
if consent is not fully informed it is invalid
what is the test in Bolam
test of clincial negligence
what is the Bolam test of clinical negligence
DOC is considered to be breached by a D if he adopts a standard of care that is lower than the standard of practice and contrary to professional opinion and therefore he was negligent as a responsible body of medical opinion would have strapped P down for ECT therapy
Cahtterton v Gerson [1981]
DOC is not breached and consent can be considered fully informed if the P is infomred of the ‘broad terms and nature of the procedure’ AKA what is done, why its being done, any risks and any alternative options
what is the standard of care for doctors
the standard of a responsible body of professional opinion
how much information does a D need to provide to a P to have consent considered sufficiently informed (4 things)
generally what the procedure is
why there doing the procedure
the risks of the procedure and
any alternative options
what was held in - Tunbridge [1994]
regardless that the D was not in contrast with the responsible body of professional opinion by not informing P of the risk of rectal prolapse, due to the severity of the consequences the omission to warn cannot be said to be reasonable
what was held in - Pearce [1999]
Any significant risks that would affect the judgment of any reasonable P should be disclosed
when should a D inform a P of risks
if a responsible body of medical opinion would inform the P of the risk (Bolam)
if the severity of the risk is so extreme that regardless of what the professional body would do they shouldve been informed (tunbridge)
if theres a significant ris that would affect any reasonable P’s judgment (pearce 1999; Montgomery)
Montgomery [2015]
held D breached his DOC by failing to inform P of the risks and alternatives that anyone in P’s position would have been concerned with about having a natural birth
what happened in - McCulloch [2023]
under the Bolam test it cannot be said that D breached his DOC as the disease was so covert even a responsible body of medical opinion would not have prescribed drugs in the circumstances
what happened in - Chester v Afsar
D’s failure to warm P meant her consent was not fully informed
