Capacity - Adults Flashcards
what is the legal position regarding consent when treating competent adults? (incl. 2 cases)
- competent individuals must consent for medical treatment
- Schloendorff v Society of NY Hospital; Heart of England NHS Trust v JB
what does Heart of England NHS Trust v JB say about consent? (4 points)
- anyone capable of making decisions has an absolute right to accept or refuse medical treatment
- consent is decision-specific - facts involved a patient suffering from paranoid schizophrenia and rejected amputation of his leg; found his schizophrenia affected some of his decisions, but not all, thus had capacity to consent to specific aspects of his treatment
- in absence of consent, any invasion of the body will be a criminal assault
- the fact that the intervention is well-meaning or therapeutic is not relevant
what is another case which discusses consent in adults with capacity and what does it say?
- Re T
- right of choice to one treatment over another is an absolute right
- this right exists regardless of whether the reasons for making the choice are ‘rational, irrational, unknown or even non-existent’
what are the 3 requirements for valid consent?
- capacity
- voluntariness
- understanding (in broad terms) of what they have consented to
what form must consent be in? (incl. case)
- Re T - does not need to be in writing and can be inferred from the patient’s conduct in the context of the surrounding circumstances
- Exceptional procedures such as fertility treatment have statutory requirements to obtain written consent (HFEA Sch. 8)
- consent to treatment is not a contract
where are the principles (in legislation) for treating adults who lack capacity found?
- Mental Capacity Act 2005 s.1
- note: act applies to people over 16. yet presumption of capacity for 16-17yos is slightly different
which provisions of the MCA assess capacity?
s.2 + s.3
what constitutes an impairment/disturbance of the mind and where is this recorded?
MCA, Code of Practice para 4.12 - conditions associated with some forms of mental illness, dementia, significant learning disabilities, long-term brain damage effects, concussion, symptoms of alcohol or drug use
temporary or fluctuating capacity factors - what are they and where are they recorded?
- MCA, Code of Practice para 4.26 - fluctuating: a problem or condition that gets worse occasionally and affects their ability to make decisions. temporary: acute illness, severe pain, effects of medication, distress after shock or death.
- para 4.27 - only need to assess capacity when the particular decision needs to be made
academic commentary: criticism of acute illness as a temporary factor affecting consent
- Raymont et al
- acceptance of the passive acquiescence of acutely ill inpatients as evidence of true consent would be dangerous, especially when important and irreversible decisions need to be made
- clinicians should thus take more care to consider the possibility that the patient is unable to give valid consent
Irrational decisions and capacity? (incl. case (facts + outcome)
- Kings College NHS Foundation Trust v C
- patient lost ‘spark’ in their (glamorous) life and attempted suicide via overdose. she was left in a life-threatening condition and refused life-saving dialysis.
- outcome: courts agreed with her ‘irrational’ decision
assisted decision making under the MCA?
- implied under s.1(3) - all practicable steps must be taken to help a person make a decision with success
- also implied under s.3(2) - a patient should not be regarded as unable to understand the relevant information if an explanation appropriate to their circumstances is given (e.g. using simple language, visual aids, sign language etc.)
what constitutes ‘information relevant to the decision’ in s.3(1)(a)? (incl. case)
Heart of England NHS Foundation Trust v JB - a ‘broad, general understanding’ of the benefits and risks of the proposed treatment rather than a more detailed understanding
