Podcast: the Fair
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.