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Medical Law Essay
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Critical analysis of the law of capacity and medical law problem question
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Part A
Capacity is crucial as “every human being of adults years and sound mind has a right to
determine what shall be done with his body; a surgeon who performs an operation without
his patients consent commits an assault for which he is liable"1. A question arises as to what
measures can be taken with people who lack the capacity to consent. This essay will seek to
examine the current law and establish if any possible reforms can be taken.
The importance of decision-making ability
Autonomy, the right to self-government, is exercised by most individuals in a medical setting
either by consenting or withholding consent to treatment. “Patients with capacity have an
almost absolute right to refuse medical treatment”2 which “exists notwithstanding that the
reasons for making the choice are rational, irrational, unknown or even non-existent”3.
The Mental Capacity Act4 (MCA) codified the capacity test in Re C5. If a lack of capacity is
found, the law allows for a breach of autonomy by allowing decisions to take place on the
patient’s behalf.
The current standing of the law
The current approach is that of the best interest test as first set out in Re F6 and later
codified into S47. Under this approach “present and past wishes and feelings… and the
beliefs and values that would have been likely to influence her decision”8 determine a
patients ‘best interests’. In a practical sense “treatment may…proceed under the general
defence provided in S5, providing it is in the patients best interests”9. Further guidance is
found within the case law, MCA guidance and so on as making decisions “now operates with
a detailed legislative framework”10.
A critical evaluation of the existing law
Best interest’s standard
Many academics hail the best interest test as “the most appropriate response to decision –
making for people lacking capacity”11.
1
Cardozo, J. Schloendorff v Society of New York Hospitals [1914] 211 N.Y. 125
2
Emily Jackson, From ‘Doctor knows best’ to Dignity: Placing Adults who lack capacity at the centre of
decisions about their medical treatment, 2018, Modern Law Review, 2
3
Re T [1992] EWCA 18, at 3 per Lord Donaldson MR
4
S2(1) Mental Capacity Act 2005 - 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.
5
Re C [1994] 1 ALL ER 819
6
Re F [1989] 2 ALL ER 545F
7
S4 Mental Capacity Act 2005
8
Mary Donnelly, Best interests, patient participation and the Mental Capacity Act, 2009, Medical Law Review,
1
9
Helen J. Taylor, What are best interests? A critical evaluation of ‘Best Interests’ Decision-making in clinical
practice, 2016, Medical Law Review, 2
10
Ibid at 8
11
Ibid at 8
, 2
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However, there are issues with this standard in both its application and the determination of
the wishes of the patient. Donnelly states that there are “difficulties in delivering genuine
participation at a practical level … and … the risk that patient participation will become a
tokenistic endeavour”12. Furthermore, Taylor states; “prevailing confusion and risk-aversive
practices mean that the rights and interests of cognitively impaired individuals continue to be
compromised”13 as “not only is the concept of decision making of ‘best interests’ in itself ill
defined, but that existing guidance for best interest decision-making is insufficient”14.
Although what can and cannot be taken into account is listed in the MCA, in a practical
sense clinicians and other affected parties may have difficulty applying this legislation. For
example; the act states that a “persons past and present wishes and feelings”15 must be
taken into account, however the act does not explain how to determine these wishes and
feelings, how much weight they must be given and how to apply them. As Donnelly states “in
some cases there may be elements of uncertainty and ambiguity”16 and “because the people
consulted inevitably have different perspectives, conflicts may arise among them as to the
wishes of the person lacking capacity”17. This was realised in Hier18; an elderly woman with
historic mental health issues covered her stomach when a feeding tube was attempting to be
re-attached. This was taken by the court as being a “plea for privacy and personal dignity
from a person … for whom life has little left to offer”19. Arguably however, as stated by
Annas “the patients’ actions were ambiguous …and … her resistance to the feeding tube
indicated nothing about her personal preferences regarding her life or death”20.
Minors
In the UK “the age of criminal responsibility is 10”21, it may seem surprising that this is not
the age at which a child can consent or not to all types of medical treatment. The Family
Law Reform Act22 and MCA acknowledge that “the consent of a minor who has attained the
age of sixteen years … shall be as effective as it would be if he were of full age”23.
Legislation clearly recognises that children under the age of 16 can have the understanding
and maturity to give consent24. However, this is the exception rather than the rule. Harris
states; the current law “totally fails to justify”25 not honouring the intelligent child’s wishes. A
child under 16 may have much more understanding than they are given credit for, yet they
can be treated without their consent, practically often even without their opinion being
valued, purely because this is not recognised.
12
Ibid at 8
13
Ibid at 9
14
Ibid at 9
15
S(4)(6)(a) Mental Capacity Act 2005
16
Mary Donnelly, Best interests, patient participation and the Mental Capacity Act, 2009, Medical Law Review,
7
17
Ibid at 16
18
Re Hier [1984] 464 N.E. 2d. 959
19
Re Hier [1984] 464 N.E. 2d. 959, per Supra n. 99, 612
20
Mary Donnelly, Best interests, patient participation and the Mental Capacity Act, 2009, Medical Law Review,
8
21
https://post.parliament.uk/research-briefings/post-pn-0577/
22
Family Law Reform Act 1969
23
S8(1) Family Law Reform Act 1969
24
Mental Capacity Act 2005 - Consent for the treatment of a child can be given by:
(1) A child who is 16-17
(2) A child under 16 who has sufficient understanding and intelligence, or
(3) A proxy (anyone with parental responsibility or the court)”.
25
John Harris, Consent and End of Life decisions, 2015, Medical Law Review, 2
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