Consent I

Question 1

Chatterson v Gerson

Answer 1

The civil law recognizes battery as a tort and this arises a where patient doesn’t not consent to the procedure.

Chatterson v Gerson - the purpose of the injection wasn’t made clear, but the patient consented in general terms.

Question 2

Mental Capacity Act 2005 - Section 1(2)

Answer 2

All adults and presumed to be competent — have capacity — unless it is established to the contrary. We are all presumed to have capacity.

Question 3

Mental Capacity Act 2005 - Section 1(3)

Answer 3

Presumption is hard to shift because the patient must not be treated as lacking capacity unless everything has been done to help them reach a decision. Doctors have to try and avoid a finding that someone lacks capacity — they have this obligation to try and help people make decisions

Question 4

Mental Capacity Act 2005 - Section 1(4)

Answer 4

Just because someone makes a decision which is unwise is not the same thing as lacking capacity

Question 5

Airedale NHS Trust v Bland [1993]

Answer 5

One of the victims of the Hillsborough disaster who was the last to die. He was left in a persistent vegetative state. That case relates to the end of life. What one of the judges in the HL said — “if a patient is capable of making a decision his choice must be obeyed even if on any objective view it is contrary to his best interest.” For a competent patient it is autonomy that prevails, even if it is contrary to someone’s best interests.

Question 6

Re T [1992]

Answer 6

Lord Donnalson — the right of choice is not limited to decisions regarded as sensible. It exists even if the reasons are rational, irrational, unknown, or nonexistent.

Question 7

St George’s NHS Trust v S [1999]

Answer 7

Autonomy not affected by fact a woman is pregnant. The court of appeal here decided that an emergency cesarian section carried out against the woman’s wishes was unlawful. It was a battery. Lord Justice Judd said that a competent woman can refuse treatment that can save the baby’s life even if that is morally repugnant to many of us.

Question 8

Mental Capacity Act 2005 - Section 2(1)

Answer 8

A person lacks capacity if at the material time he is unable to make a decision for himself in relation to the matter, because of an impoariment or a disturbance in the functioning of the mind or brain.

Two points: (1) Unable to make a decision for himself AND (2) an impairment or disturbance.

You need to show a disturbance is a question of fact. You don’t lack capacity if you don’t show this. You look at this first. This is a factual issue — does the patient in fact have this impairment or disturbance? If you don’t, as a patient then you cannot lack capacity – there has to be a question of medical evidence which will show such an impairment. It can be temporary or permanent, but it must exist.

MCA Code of Practice gives are examples of what would be an impairment for the purposes of section 2(1). It is not meant to be an exhaustive list.

Mental illness including dementia — but this is wide.

Anything is capable of being an impairment or disturbance of the functioning of the brain.

Significant learning disabilities — 
Brain damage
Conditions that cause confusion or drowsiness
loss of consciousness or delirium
concussion
symptoms of alcohol or drug use.

Question 9

Mental Capacity Act 2005 - Section 2(2)

Answer 9

Impairment can be temporary or permanent.

Question 10

Mental Capacity Act 2005 - Section 2(3)

Answer 10

Age or appearance should not lead to any assumption about capacity. Just because someone is elderly, or looks like they might be suffering from a mental incapacity, that should not lead to an assumption. Each case is determined on its facts

Question 11

Mental Capacity Act 2005 - Section 2(5)(b)

Answer 11

This applies to adults, which is defined at 16 years of age. Any people over 16 who amounts to an adult.

Question 12

Re MB [1997]

Answer 12

Fear of needles and panicked

The code of practice para. 4.26 and onwards does suggest that there are other things that could qualify, such as phobias — Re MB [1997] fear of needles and panicked

Question 13

Mental Capacity Act 2005 - Section 3(1)

Answer 13

Says the inability to understand means;
inability to understand the relevant information;
retain that information;
to use or weigh it up in making a decision;
to communicate the decision

The first three come from Re C [1994]

Question 14

Mental Capacity Act 2005 - Section 3(1)(a)

Answer 14

Understand the relevant information. Clearly it becomes important to know what is relevant.

Question 15

Local Authority v A

Answer 15

Clearly it becomes important to know what is relevant. What is actually relevant Section 3(1)(a). This has come up in a few cases. One case involved contraception. What the court decided was that in order to understand the information, the court decided the lady only needed to understand the implications of contraception. So the level of understanding is not a comprehensive understanding. Local Authority v A. The relevant information just looked at the basic information. Wasn’t necessary to understand the full implications of an unwanted child

Question 16

Re Y

Answer 16

Wider than ‘medical interests’ - it is quite clear that best interest encompasses more than clinical best interests. When treatment is being judged best interests should be looked at holistically.

The issue was if Y’s bone marrow’s could be taken to treat an ill sibling. He lacked capacity. The purpose was to treat an ill sibling. There is no clinical benefit to Y. Irrespective of that, the court said you need to look at his best interest in a global sense. His family and sister were very important to this man. His family unit provided him support and visits, and his relationship within the family unit would suffer if the sister died. The sister would drive the mother to visit because she was very elderly, and without the sister the visits would dry up

Question 17

Ashan [2006]

Answer 17

Wider than ‘medical interests’ - it is quite clear that best interest encompasses more than clinical best interests. When treatment is being judged best interests should be looked at holistically.

This is confirmed by the Ashan [2006] - concerned a Muslim woman who was left without mental functioning after an accident. Her family wanted her nursing care to be compatible with Muslim transitions. The hospital argued that this would add expense and they did not feel that there would be any benefit. The court disagreed — to treat her in accordance with her beliefs would be compatible with her past wishes, and from a family point of view, it would be reflected by the family’s religious circumstances and that should be taken into account.
When choosing treatment best interests could include personal dignity and respect for religious beliefs.

Question 18

Pre MCA 2005

Answer 18

‘Defence of necessity’. If you had someone in an emergency who lost capacity, you would be able to treat them through this defence. This was wide enough to treat people who had a stroke. This is all dealt with by the MCA

Question 19

Mental Capacity Act 2005 - Section 4(3)

Answer 19

Will P at some time have capacity and when is that likely to be? It is relevant in terms of best interests of when the patient may regain consciousness in the future.
Generally, the doctor should generally take steps to improve the patient’s ability to participate

Question 20

Mental Capacity Act 2005 - Section 4(4)

Answer 20

Usually, in an emergency, in order to satisfy Section 4(4) you would try to stabilize someone or improve someone so that they could regain consciousness so they could participate in the decision making process

Question 21

People under age 16 in an emergency

Answer 21

The defence of necessity is still relevant in treating people who are under 16 in an emergency context.

Question 22

Mental Capacity Act 2005 - Section 5

Answer 22

This section says that if the medical professional can show a reasonable belief that someone lacks capacity and a reasonable belief that treatment is in their best interests, then they are immune from civil and criminal liability.

Question 23

Mental Capacity Act 2005 - Section 15

Answer 23

Court of Protection - if there is any doubt or a dispute between the doctors, or the doctors and relatives, then the sensible strategy would be to have the procedure sanctioned by the Court of Protection.

Question 24

Mental Capacity Act 2005 - Section 6 & Code of Practice

Answer 24

MCA 2005 Section 6 together with the Code of Practice. You can force under Section 6 provided firstly that it is necessary to prevent harm to the patient, and secondly, it must be a proportionate response given the likelihood and seriousness of that harm.

Question 25

DH v NHS Foundation Trust [2010]

Answer 25

Woman needed emergency of hysterectomy. She had a phobia of hospitals and needles. Phobias can amount to an impairment of the brain if bad enough - which was the case here. She lacked capacity. What the court said here is that forcibly restraining her, sedating her, loading her into an ambulance, and getting her to hospital, was all necessary and proportionate in view of her medical needs.

Question 26

Herczegfalvy v Austria (1992)

Answer 26

What the court said was that Article 3 was not engaged where actions, including restraint, were of therapeutic necessity.

Question 27

HE v A Hospital NHS Trust [2003]

Answer 27

Woman signed one against blood transfusions. Was written and signed. She was a Jehovah Witness. She later needed a life saving blood transfusion. At that point, her family circumstances had changed. She was about to convert to Islam. The court found that there was a change in circumstances which nullified the advanced decision so she could be treated in her best interests.

If they are valid, then even if someone lacks capacity, you have to follow the procedure.

Doctors often try to find flaws in the advance decision to put them aside so they can treat in the patient’s best interests.

Question 28

Re T [1993]

Answer 28

Another case involving a Jehovah Witness. On the facts, the court found that her decision had been heavily influenced by her mother. She was a wavering Jehovah Witness, and her decision was influenced by this case.

If a decision is forced through coercion or duress, or it comes back to undue influence, what happens to the decision? It is nullified. The effect of both of these is to nullify the decision. The final question is what therefore replaces that decision? Undue influence and coercion invalidate the decision which is being taken. The decision is being set aside. But what replaces it?

There is little case guidance, but theoretically, if there is an earlier competent decision by the patient, that would be a fall back. But what the courts have said in quite a few cases, including Re T, is the undue influence could also affect a patient’s ability to decide. In which case, this feeds back to Section 3(1) making the patient incompetent, and then the decision is done in their best interests.