Podcast: the Ugly
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.