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Medical Consent

Facts: Maisie is a 17 years old, who has autism and ADHD, and have serious learning disability. Maisie is a recently have kidney failure and there is a need to consider whether she can approve of the medical treatment, that is surgery, that is the proposed. The family members are  cool with the procedure, but when Maisie was asked by the medical personnel, she stated “I don’t know” “Do whatever you want”. Within the context of UK law, what is the legal position on medical consent as it relates to mental health?

In determining the possible arguments that could be raised from the treatment of Maisie, we have to consider the following issues. First, whether Maisie has been said to have a mental disorder and legal capacity grant consent to a particular treatment. Second, whether the terms “I do not know” or Whatever you want” constitute a viable or informed consent within the purview of the applicable mental health law; to override the position of Maisie’s family. Third, whether the circumstances are such that Maisie can be detained within the purview of the law for the purpose of treating her, irrespective of clear consent from her.

On the first and second issues, it is apt to begin by considering the legislations that are applicable from the circumstances of Maisie. It is important to observe that the provisions of the Mental Capacity Act 2005 is geared towards providing protection for vulnerable persons that are over the age of 16 when issues relating to decision making arise. The Mental Capacity Act 2005 bestows the right to make decisions on every adult, irrespective of disability. This is more so as section 1(2) of the Mental Capacity Act 2005 provides for a rebuttable presumption that every person has capacity. By virtue of section 2(1) of the Mental Capacity Act 2005, a person can only be deem to be incapable or lack capacity where such person is not able to make a decision in the light of the impact of the disturbance being experienced by the person. In the case of Re C (Adult, refusal of treatment), the court reiterated that a case of mental illness does not necessarily mean that the patient lacks capacity and where a patient has capacity, he can refuse treatment. In Re B (Adult, refusal of medical treatment where the patient was suffering from a sort of complete paralysis and needed artificial ventilation in order to save her life, and she requested that the ventilation be removed but the doctor declined, the court held that a mentally competent patient has the right to refuse treatment and such decision must be respected, and that doctors should not misplace the mental capacity of the patient with the emotional disagreement with the decision of the patient. In Kings College Hospital NHS Foundation Trust vs C, a person cannot be adjudged to be lacking capacity because the decision he took is considered unwise as pointed out by section 1(4) of the Mental CapacityAct 2005.

In determining whether the condition of Maisie can be regarded as a mental disorder, section 1(2A) of the Mental Health Act 2007 provides that someone with learning disability shall only be considered to be suffering from a mental disorder if the person unless it is established that the disability is associated with abnormally aggressive or seriously irresponsible conduct on his part. Section 3(1) of the Mental Capacity Act 2005 observed that a person is unable to make a decision where such person is not able to understand the information presented to aid him or her take a decision; not able to retain information; not able to weigh information; or communicate decision. Meanwhile section 3(4) of the Mental Capacity Act further noted that a person would be deemed to be unable to make a decision where the necessary information relevant to a decision includes information that can be said to be specific and point to the question that was presented to the patient.

In applying the above legal positions to the facts of Maisie’s case, it is possible to argue that Maisie is within the age that is covered by the provisions of the Mental Capacity Act 2005. This argument is predicated on the fact that Maisie is 17 years old, meanwhile, the law provides protection for persons over 16 years. Hence, Maisie’s right to take a decision regarding her treatment not minding her disabilities and the fact that she has autism and ADHD. This is on the ground that it would be argued that she has a presumption of capacity. However, it is possible to hold that Maisie lacks capacity in view of the fact that she can be adjudge to have a mental disorder. This would be fortified by the fact that Maisie’s disability has a possibility of her becoming aggressive. Therefore, it is apt to say that Maisiehas a mental disorder within the purview of applicable mental health laws that would ordinarily require her consent in determining the treatment that is tenable for her. Furthermore,the response by Maisie is not a clear response to the question.

Ordinarily, it would be further argued that the response by Miasie that “I do not know” or Whatever you want” is not enough ground (on its own) to believe that she lacks capacity to take a decision unless it is established that Maisie cannot make a decision. More so as section 2(1) of the Mental Capacity Act 2005, a person can only be deem to be incapable or lack capacity where such person is not able equivocally make a decision in line with the legal requirements of the Health Capacity Law 2005. However, in consideration of the response that Maisie gave, it is correct to say that she is unable to make a decision in view of the fact that the response to the question as to the treatment was neither here nor there. As such, the law, as noted above, considers such a position as unable to make a decision.

On the third issue and with regards to whether the hospital management or doctors can detain Maisie within the period of hooking up Maisie for days to administer IV, it is proper to say that section 2 of the Mental Health Act can be invoked in detaining a patient who have mental disorder; has medical condition that requires being examined in the hospital; and the medical professionals are of the view that the patient is required to be in the hospital for the safety and protection of the patient.In the event that a patient is admitted under the aforesaid provisions of section 2 of the Mental Health Act would be required to be kept in the hospital for a period of 28 days subject to renewal for another 28 days. This detention can be done either where the patient’s closest relative, a social worker or any person that the court authorised by the patient or court to act on behalf of the patient. Tucker J observed in the case of R v Wilson Ex p. Williamson that “a section 2 application “is only intended to be of a short duration for a limited purpose – assessment of the patient’s condition with a view to ascertaining whether it is a case which would respond to treatment…” Meanwhile, in the event that the treatment is such that requires a longer period, the patient may be detained for a continuous period of six months by virtue of section 3 of the Mental Health Act. Admissions under section 3 must satisfy some conditions, which include the fact that the patient is suffering from severe mental impairment, mental illness, psychopathic disorder or mental impairment; which make it a requirement that the patient has to be in the hospital and the said treatment is necessary for the safety of the this case, the patient can be compelled to take the treatment irrespective of and objection.

In a similar vein, the provisions of the Human Rights Act also permits the detention of a person who is of an ‘unsound mind’. the basis of unsound mind was established in the case of Winterwerp v Netherlands where the court held that it is important to establish an objective found that the patient has a mental disorder. This has to be done by a medical facility that is authorised to treat such disease of mental disorder. Meanwhile, the court disapproved that a person cannot be detained solely on the ground that the behavior of the patient deviates from the usual norms of the society. The court was of the view that the confinement has to be necessitated by a certain degree of disorder. This is reiterated in section 4 of the Mental Health Act 2007.

By the Code of Practice, where it is established that a person lacks capacity, any person working or giving any form of care to the said adult who lacks capacity, has certain responsibilities to take when acting or making or taking decisions regarding the individual that has been confirmed to lack capacity to take decision. Furthermore, the provisions of Mental Capacity Act 2005 makes it mandatory for any decision or action taking on behalf of a person who lacks capacity must be in the best interest of the individual alongside the purpose and effectiveness of the treatment with the right of the person. Meanwhile, different approaches/tests have been adopted to determine best interest. For example, the Bolam principle was established in the case of Bolam v Frierm Barnet HMC where the court held that where a doctor establishes the other doctors would have adopted the same approach he or she adopted, such doctor may be excused for a claim for negligence. By this principle, it becomes pertinent to ask whether other doctors or medical personnel would have acted or make a particular decision under scrutiny. Meanwhile, the test was taking further in the case of Re A (Male Sterilisation) where a two stage test was introduced. The first stage is where the court considers the Bolam  test and where the test is met, the court would proceed to the second stage by considering whether the particular treatment provided would be the most significant taking into considering the advantages and disadvantages of  the adopted treatment. To this end, it behooves on doctors to write and consider the possible advantages and disadvantages. Meanwhile common law position has been incorporated into Mental Health Act as the Act. Therefore, a consideration of section 4 of the Mental Health Act 2007 made a comprehensive analysis of the statutory test.

From the totality, it is correct to say that the hospital can rely on the provision of the Act to detain Maisie and administer the best treatment that is reasonable in the circumstance. This is more so as the response made by Maisie can be interpreted to authorizing the doctors to do what they think is best for him.However, if the family wants Maisie to be discharged, they can apply for a review of the decision to request that Maisie be discharged by the provisions of the section 2, 3 and 7 of the Mental Health Act. Under these circumstances, the said relatives have to give 72 hours notice of their intention.


Case Law

Re C (Adult, refusal of treatment) [1994] 1 All ER 819

Re B (Adult, refusal of medical treatment) [2002] 2 All ER 449

Kings College Hospital NHS Foundation Trust vs C [2015] EWCOP 80

R v Wilson Ex p. Williamson [1996] C.O.D. 42

Winterwerp v Netherlands 6301/73 [1979] ECHR 4

Bolam v Friern Hospital Management Committee (1957) 1 WLR 583


Human Rights Act

Mental Health Act 2007

Mental Capacity Act 2005

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