Consent and Capacity
In recent times, the law has viewed consent as having a clinical and a legal purpose.
➔ The 'clinical' purpose: ‘the co-operation of the patient and the patient's faith or at least
confidence in the efficiency of the treatment is a major factor contributing to the
treatment's success.’
➔ The ‘legal' purpose: '...is ... to provide those concerned in the treatment with a defence to a
criminal charge of assault or battery or a civil claim for damages for trespass to the
person.‘ - per Lord Donaldson in Re W [1993] Fam 64 at 76.
Consent is now regarded (primarily) as a device for protecting patient autonomy.
➔ ‘C is entitled to make her own decision on that question based on the things that are
important to her, in keeping with her own personality and system of values and without
conforming to society's expectation of what constitutes the 'normal' decision ... As a
capacitous individual C is, in respect of her own body and mind, sovereign.’ - Kings College
Hospital NHS Trust v C [2015] EWCOP 80.
This right to make a decision is not absolute, but qualified.
➔ R (on the application of Burke) v General Medical Council [2005] EWCA Civ 1003 - Patients
do not have a right to demand treatment.
In this case, the patient demanded to receive treatment. However, the opinion of the professional
was that the treatment should stop. Therefore, it will stop.
What is patient autonomy or self-determination?
Secretary of State for Home Department v Robb [1995] Fam 127 - Raised the question of the legality
of force feeding a prisoner (Robb), who was on hunger strike. Prison officers brought a case for
clarification on autonomy when prisoners went on a hunger strike. Found that Robb could behave
unreasonably, as long as he was of sound mind.
➔ '…the principle of self-determination requires that respect must be given to the wishes of the
patient. So if an adult of sound mind refuses, however unreasonably, to consent to
treatment or care by which his life would or might be prolonged, the doctors responsible
for his care must give effect to his wishes even though they do not consider it to be in his best
interests to do so.' (Thorpe J).
However, would the prison officers who respected Robb’s wishes, be liable as an accessory to a suicide?
No – death due to refusal of food was not treated as ‘suicide’. By analogy, the death of a patient
refusing treatment is not regarded in law as suicide.
How is autonomy protected? Legal remedies for non-consensual treatment
1. Lack of real/valid consent = a battery:
,Any ‘touching’ of the body by another without consent is potentially a battery (a specific form of
‘trespass to the person’). Each person has the right to have their body protected against invasion by
another. It does not have to result in a harm.
➔ e.g. monitoring blood pressure, checking their temperature, moving them to another bed can be
a battery if there is no real/valid consent.
For consent to render treatment lawful, there must be a ‘valid’ consent. This entails that:
i). the patient must be informed in broad terms;
ii). consent must be voluntary (e.g. free from undue influence); and
iii). the patient must have the capacity to consent.
(Failure to obtain a valid consent can result in a battery claim)
➔ Important: There is also an additional requirement that patients must give an ‘informed
consent’ (failure to obtain an informed consent can give rise to liability in negligence). This will be
discussed later.
Informed in broad terms: how much information provides a valid consent?
Chatterton v Gerson [1981] QB 432 – Patient given a spinal injection to better chronic pain, but there
was a failure to disclose the risk of numbness. She had consented to the spinal injection, but she claimed
that it was a battery as she was not informed correctly about the risk of numbness from this injection.
It was held that not being told of the risks was not enough to invalidate consent. Therefore, it cannot
be a battery.
➔ 'In my judgment once the patient is informed in broad terms of the nature [and purpose] of
the procedure which is intended, and gives her consent, that consent is real, and the cause of
the action on which to base a claim for failure to go into risks and implications is negligence, not
trespass.’ (Bristow J)
Consent must be voluntary: What is undue influence?
Undue influence means that pressure is put on the person who is making the decision.
Examples of who it can come from include partners, siblings, children, parents and doctors themselves.
A case example where undue influence ‘invalidated’ the patient’s decision: Re T (Adult: Refusal of
Treatment) [1993] Fam 35 - A young woman, T, was in a bad road traffic accident. T needed a blood
transfusion as she was in a critical condition. Whilst awake, and after being visited by her mother who
was a Jehovah’s Witness, T refused the blood transfusion. The hospital staff questioned whether she had
been unduly influenced by her mother, and wondered if they could override her decision and save her life,
because the refusal came out of nowhere.
Outcome: T’s refusal for a blood transfusion was overruled by the court on grounds that it had been the
product of undue influence. T was given the transfusion.
2. Article 8 ECHR/HRA violations:
,Article 8 of the European Convention of Human Rights (ECHR) / Human Rights Act 1998 (HRA) =
the right to respect for privacy.
Article 8 is read as extending to a right to self-determination in medical decision making. Therefore,
not respecting a patient’s decision can violate Article 8 ECHR / HRA.
A case example: Re AB [2016] EWCOP 37 - Putting medicines in food without the patient’s consent
(covert medication) can violate Article 8. The court found that this was a violation of the patient’s rights to
privacy and their right to determine their own future.
➔ The only way that such a situation would not violate Article 8 is if the law had authorised the
covert medication administration in advance.
Covert medication administration is not usually actionable in battery. While the medication is being
put into their food without consent, they are putting the food into their mouth themselves.
3. Lack of informed consent = Actions in the tort of negligence
There is also an additional requirement that patients must give an ‘informed consent’ (failure to
obtain an informed consent can give rise to liability in negligence).
There is a deficiency in the way in which the consent was made, and this can give rise to negligence.
➔ e.g. consent is valid, up until the point that a complaint is made (a patient may complain about
being given lack of information).
The leading case here is now Montgomery v Lanarkshire Health Board [2015] UKSC 11-
➔ Patients are active and deserve information which is beyond broad terms.
➔ Doctors have a duty to inform patients about the ‘material’ risks of proposed treatment and
available alternatives.
So, in medical law, patients can bring these types of claims:
Battery = doctors did not ask if they can do what they did to the patient, and/or did not say the nature and
purpose. There is a touching involved, but no damage.
Negligence = perhaps the treatment was administered negligently. The patient did not receive enough
information and/or alternative procedures were not shared. With negligence, there must be a damage.
Capacity and the Mental Capacity Act 2005
There is a capacity assessment, which heavily involves subjective value judgements.
For this reason, it can be argued that the capacity assessment is problematic. It is charged by
subjective value judgements, and these judgements will inevitably impact how the assessment
takes place.
➔ A. Ruck Keene, ‘Is mental capacity in the eye of the beholder?’ (2017) 11(2) Advances in
Mental Health and Intellectual Disabilities 30 at 33: ‘[The capacity assessment] might be said
to show as much about the person conducting the assessment as it does about the person being
assessed.’
, We need to be able to assess capacity to make valid decisions and give valid consent. It is a hybrid of
statute and case law.
It is important to note that case law before the Mental Capacity Act 2005 (MCA) is still really good
law. The MCA did not overrule capacity law. What happened was that a large amount of the MCA 2005
codified what’s already there in the case law.
➔ In problem questions, you must apply the incapacity test which is outlined in the MCA 2005.
Capacity is a subjective concept. It is infused with value judgements and there are lots of cases
which show how difficult these decisions are to make, and how difficult it is to reach conclusions.
Capacity is not defined in the MCA 2005… instead, it defines ‘persons who lack capacity’:
s.2(1) ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a
decision … in relation to the matter because of an impairment of, or a disturbance in the functioning
of, the mind or brain.’
The incapacity test (not actually an incapacity test, as the test is for capacity):
➔ This test is for adults.
★ Adults are 16+.
★ Adolescents are under 16.
➔ The incapacity test is a two stage test.
Stage 1: inability to decide
Being ‘unable to make a decision’ is further defined in s.3(1) as being 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).
There is no definitive level of “understanding” given by the act. There is also no indication of the
length required to retain information - does it need to be more than ten minutes? An hour? A day?
Communication can be impaired by level of consciousness, someone who cannot communicate
whatsoever (e.g. in a coma), someone who has a low level of consciousness (e.g medication that they
are on). This all can result in the inability to decide.
The incapacity test can be applied paternalistically: a patient can make an irrational decision and still
have capacity.
Stage 2: impairment or disturbance
Usually, cases questioning capacity will involve mental disorders or disabilities.
