Discuss when an adult patient will have capacity to consent to treatment.

   Podcast: the Good     

Section 1(2) of the Mental Capacity Act 2005 explains that it is presumed in English law that an adult has capacity. The burden of proof, therefore, lies on anyone claiming a person lacks capacity. Section 2(1) of the Mental Capacity Act sets out the circumstances in which a person lacks capacity,
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

Section 3(1) explains that a person is unable to make a decision for himself if he is unable:

1. to understand the information relevant to the decision;
2. to retain that information;
3. to use or weight that information as part of the process of making the decision; or
4. to communicate his decision (whether by talking, using sign language or any other means.

Having set out these key principles, this essay will consider some of the elements of this definition in greater detail.(1) The answer has set out the key principles at the start. The examiner can be sure that the candidate knows the key statutory provisions.

First, it should be noted that the definition only applies where there is a disturbance in the functioning of the mind or brain. Although that would clearly include, for example, a patient suffering dementia, it would not apply simply because the patient was in pain or had a low IQ. In S v St George’s NHT Trust the Court of Appeal was critical of any assumption that a woman in labour was automatically lacking capacity because she was in pain.(2) It good to see the candidate using an example from the case law to clarify the issue made.

Second, the test is issue specific. That means that a patient might lack the capacity to make some decisions, but not others. So a patient with a severe learning difficulty may lack the capacity to understand the information surrounding major surgery, but be able to decide what they would like for tea.(3) This is an important point to make. The candidate has done well to use a vivid hypothetical example to demonstrate that they understand the issue.

Third, professionals dealing with a patient should try and help the patient gain capacity if at all possible. Section 2(2) of the Act mentions using sign language or visual aids.(4) The candidate referred specifically to the relevant statutory provision. The examiner will be keen to see this. The point is that a patient should not be assumed to lack capacity simply because at the moment they lack sufficient understanding, if they could gain the understanding with some help. 

Fourth, to have capacity a patient must be able not only to understand the information, but to weigh it and reach a decision.  This can be particularly helpful in cases where a patient is suffering needle phobia or is otherwise in a panic and cannot make a decision (see e.g. Bolton Hospitals NHS Trust v O).  In such a case the patient may understand the relevant issues, but not be able to use them to make a decision.(5) Again, it is good to see the candidate referring to an example from the case law to back up this point.

Fifth, a very important principle is found in section 1(4). That states that a patient must not be treated as lacking capacity merely because they make an unwise choice. It is very easy to assume that because the patient has made an unwise choice that they, therefore, lack capacity. That should be avoided.  In Re C (Adult: Refusal of Treatment) a patient believed God would heal him of his gangrene and, therefore, refused to consent to the doctor’s recommendation of cutting his foot off. Thorpe J held that he understood the relevant issues and had reached his decision. Although many people would think his decision unwise that did not mean that he lacked capacity. Although that case was decided before the Mental Capacity Act, it is likely to be followed today. That case, however, should be contrasted with R(N) v Dr A, where a patient believed that the doctors were trying to make her believe he was a man. There, unlike in Re C, the belief affected her ability to understand the medical information.(6) It is helpful to contrast decided cases to highlight the difficulties mentioned. Although the cases were decided before the Act came into force, they are still helpful in revealing the issues raised.

Sixth, the patient must understand the relevant information. The Act does not make it clear what the relevant information is. In the leading case of Chatterton v Gerson it was explained that the patient had to understand ‘in broad terms the nature of the procedure which is intended’.(7) This is a good quote to remember. It is important to emphasize that little information is needed before a person has capacity to consent. That makes it clear that there is no need for the patient to know all of the detailed issues surrounding the treatment. So in Potts v NWRHA when a woman consented to a routine post-natal vaccine, but was in fact given a long-acting contraceptive, there was no difficulty in finding she did not understand the basic information about the proposed surgery. 

Finally, a patient must be able to weigh up the information to make the decision. That means that if the patient is subject to undue influence (e.g. by an overbearing relative) they will lack capacity (Re T).

To conclude, the test for capacity in the Mental Capacity Act 2005 has to strike a difficult balance. On the one hand, if the test is made too hard to satisfy, many people will be treated as lacking capacity and be unable to make decisions for themselves. On the other hand, if the test is made to easy to satisfy, people will be bound by decisions when they did not really understand the issues involved.  The test in the Act does well in striking the balance between these concerns.

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Discuss when an adult patient will have capacity to consent to treatment.

   Podcast: the Fair     

The issue of capacity is very important for medical law. It is unlawful to operate on a patient unless the patient has consented with capacity. However, it should be added that just because a patient has consented, it does not mean that the doctor has to provide treatment to the patient.(1) It is good that the candidate set out the background for the issue of consent. It would have been helpful to cite Burke v GMC at this point.

The test for capacity is found in the Mental Capacity Act 2005. The patient should understand the key issue relating to the treatment and be able to make a decision for him or herself. To be able to make a decision for him or herself the patient must be able to understand the issue and use it to make a decision.(2) The candidate has set out the key parts of the legal test, but they are not complete. Also reference is not made to relevant section numbers of the statute.

We will now look at some of the key issues relating to this definition.

First, the patient must understand the key issues relating to the treatment. The law is very lax (Chatterson v Gerson). A patient must understand the relevant issues before being able to consent.(3) It is good that the candidate has referred to Chatterson but they have not actually said what it decided. It may well be that they know, but the examiner can only judge by what appears in the exam.

Second, the patient must not suffer severe delusions. In R (N) v Dr M the patient thought the doctors were trying to harm her and so it was found she lacked the capacity to consent. The patient must not be mistaken over any information if she is to have capacity.(4) This is not entirely accurate. The candidate needs to make it clear which kinds of mistake will mean that the patient lacks capacity. A comparison with Re C (Adult: Refusal of Treatment) would assist.

Third, the patient must be helped to make the decision if necessary. So if they do not currently understand the decision because they do not speak English, they should not be found to lack capacity. The doctors must do what they can to help a patient have capacity.(5) This is a good point, but referring specifically to s 2(2) of the Act would have made it an even stronger one.

Fourth, the law of undue influence applies here as elsewhere. So a patient whose will is overborne by another will be found to lack capacity. The court will assess whether the patient is able to make the decision for themselves.(6) This is a good point, but it would be helpful to have backed it up with a reference from the case law: Re T would have been a good case to use.

We have now set out the main principles to use.(7) Two key principles have not been included: the fact that capacity is issue specific and the fact that there is a presumption of capacity. Both of these need to be mentioned in a good answer. It is important that we do not allow people who lack capacity to have their autonomy respected. Therefore, the test for capacity should be set very high. Otherwise patients will be harmed and their foolish decisions given undue weight.(8) These are reasonable points to make, but the candidate needs to show awareness of the balancing consideration of why autonomy should be respected. The Act needs to do more to ensure that autonomy is only respected where a patient fully understands the issue raised.(9) The candidate should do a little more to explain where the weaknesses in the test for capacity are. Where reform for the law is called for, this should be as precise as possible.

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Discuss when an adult patient will have capacity to consent to treatment.

   Podcast: the Ugly     

To be able to consent to treatment the patient must be able to understand all of the issues relating to the treatment. The key test is found in section one of the Mental Health Act.(1) This is not a great start. It is the Mental Capacity Act 2005, not the Mental Health Act 1983 that sets out the test for capacity. It requires the court to decide whether or not the person has understood all the issues and is able to reach a decision.(2) The candidate has failed to correctly set out the test for capacity in the Act. The statement here is far too vague.

The law on consent is very important because a patient who consents must have their wishes respected. This is known as the principle of autonomy. It means that doctors are required to respect the wishes of patients. No longer do we assume that doctors know what is best for us, we can decide what treatment we should receive.(3) The answer correctly identifies autonomy as the key principle, but then misstates it. Remember that in English law an important distinction is drawn between consent to treatment and refusal of treatment.

A very important issue around consent to treatment is euthanasia.  Some people oppose euthanasia and say we should respect sanctity of life.  But this is religious mumbo jumbo.  Each person should be allowed to choose when to die and when not to die.  I would like to die at home surrounded by my loved ones.  Just because that is against some people’s religion they should not stop me dying when I want to.  So when the law respects people’s consent, it should respect their right to choose when to die.  Indeed, that may be regarded as one of the most important rights that we have as humans.  If we cannot choose when and how we want to die what is the point of the issue.(4) Here the answer has gone off at a tangent. The answer is asking about capacity and we are a long way from that in discussing euthanasia. It looks like the student is riding his favorite hobby horse, rather than answering the question.

A key case on consent is the case where the patient refused a Caesarean section and so her baby died.  This, I think, may be taking things too far.  What about the choice of the baby who wanted to live?  It is even arguable that she killed the baby.  So there must be a limit on what can be consented to.  Probably the best way of dealing with this case would be to say that the woman was in such pain during the labour that she did not know what she was saying.  It is bizarre that the court did not consider whether she was competent.(5) Presumably the candidate is discussing S v St George's NHS Trust. They have inaccurately summarised the facts (the Caesarean section was carried out) and inaccurately represented its conclusion (the court considered carefully whether the woman had capacity).

The issue of competency is very important in medical law.  We need to know if a patient is competent or not in order to determine their legal rights.  It is helpful to have a clear statement of the law so that doctors know if a patient has capacity.  The law needs to be clarified so we know what the position is.(6) The candidate is waffling. It looks like they have run out of things to say and are just repeating themselves.

All in all we can say that a patient has capacity if they can understand the key issues.  Then their wishes must be respected by doctors.  This is especially important in the area of euthanasia, where the key question is:  who’s life is it anyway?(7) The answer has failed to set out the law clearly. It contains several errors about the law and there is no discussion of the relevant case law. It even ends with a grammatical error. This answer would probably fail.

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