Capacity I:
Medical Capacity Act
- Contrast people who don’t have the capacity to make decisions with the strong principle of autonomy
The principle of autonomy:
- Requirement of consent protects the principle of autonomy and bodily integrity
- Article 8 HRA: involves “a right to make important decisions about what happens to one’s body”
- Airedale NHS Trust v Bland [1993] AC 789
o Lord Mustill
o “If the patient is capable of making a decision on whether to permit treatment, … his choice must be obeyed
even if on any objective view it is contrary to his best interests.”
- Re T (Adult: Refusal of Treatment) [1993] Fam 95,
o Lord Donaldson MR
“the patient's right of choice exists whether the reasons for making that choice are rational, irrational,
unknown or even non-existent.”
o Staughton LJ:
The right exists ‘even in circumstances where she is likely or even certain to die in the absence of
treatment.’
o Butler-Sloss LJ:
“the decision does not have to be sensible, rational or well-considered.”
o British Medical Association:
“it is well established in law and ethics that competent adults have the right to refuse any medical
treatment, even if that refusal results in their death’.
Highlight individualistic right- having no consideration of the impact of the decision on her
dependents.
o Can create “a tension between a patient’s legal right to determine what is done to her
body, and her moral obligations to others”
- Glick questions whether the short-term autonomy of a distressed patient should be respected
o Distressed patients can make “hasty tragic decisions which they...regret”; since “a patient who is frightened and
stressed, may not be fully autonomous; his/her refusal should therefore be assigned less weight.”
o If a patient’s death could be avoided and “it is virtually certain that were he saved against his present protest he
would be grateful”, the law is prioritising short-term autonomy over long-term autonomy (‘The morality of
coercion' (2000) 26 Journal of Medical Ethics 393-5.)
Judging incapacity?
- Crucial:
o Without capacity, a patient can be treated without their consent. If capacity, cannot be treated without consent.
- Difference between adults and children is the burden of proof
o Doctors to establish that an adult does not have capacity; child to establish that she does have capacity
o Exception = when children want to make life-threatening decisions, “virtually impossible” to establish
competence
- Potential problem = “capacity is a question of degree”
o Gunn: “Capacity/incapacity...appear on a continuum which ranges from full capacity at one end to full
incapacity at the other end. ... The challenge is to choose the right level to set as the gateway to decision-
decision-making and respect for persons and autonomy.” ('The Meaning of Incapacity' (1994) 2 Medical Law
Review 8.)
- Less likely to question capacity if the patient has consented- bias?
- Status approach
o E.g. age-based categories- clear line.
- Functional approach
o Individualised assessment of decision-making ability.
Can this individual make this particular decision.
- Which is more protective of autonomy?
Medical Capacity Act
- Contrast people who don’t have the capacity to make decisions with the strong principle of autonomy
The principle of autonomy:
- Requirement of consent protects the principle of autonomy and bodily integrity
- Article 8 HRA: involves “a right to make important decisions about what happens to one’s body”
- Airedale NHS Trust v Bland [1993] AC 789
o Lord Mustill
o “If the patient is capable of making a decision on whether to permit treatment, … his choice must be obeyed
even if on any objective view it is contrary to his best interests.”
- Re T (Adult: Refusal of Treatment) [1993] Fam 95,
o Lord Donaldson MR
“the patient's right of choice exists whether the reasons for making that choice are rational, irrational,
unknown or even non-existent.”
o Staughton LJ:
The right exists ‘even in circumstances where she is likely or even certain to die in the absence of
treatment.’
o Butler-Sloss LJ:
“the decision does not have to be sensible, rational or well-considered.”
o British Medical Association:
“it is well established in law and ethics that competent adults have the right to refuse any medical
treatment, even if that refusal results in their death’.
Highlight individualistic right- having no consideration of the impact of the decision on her
dependents.
o Can create “a tension between a patient’s legal right to determine what is done to her
body, and her moral obligations to others”
- Glick questions whether the short-term autonomy of a distressed patient should be respected
o Distressed patients can make “hasty tragic decisions which they...regret”; since “a patient who is frightened and
stressed, may not be fully autonomous; his/her refusal should therefore be assigned less weight.”
o If a patient’s death could be avoided and “it is virtually certain that were he saved against his present protest he
would be grateful”, the law is prioritising short-term autonomy over long-term autonomy (‘The morality of
coercion' (2000) 26 Journal of Medical Ethics 393-5.)
Judging incapacity?
- Crucial:
o Without capacity, a patient can be treated without their consent. If capacity, cannot be treated without consent.
- Difference between adults and children is the burden of proof
o Doctors to establish that an adult does not have capacity; child to establish that she does have capacity
o Exception = when children want to make life-threatening decisions, “virtually impossible” to establish
competence
- Potential problem = “capacity is a question of degree”
o Gunn: “Capacity/incapacity...appear on a continuum which ranges from full capacity at one end to full
incapacity at the other end. ... The challenge is to choose the right level to set as the gateway to decision-
decision-making and respect for persons and autonomy.” ('The Meaning of Incapacity' (1994) 2 Medical Law
Review 8.)
- Less likely to question capacity if the patient has consented- bias?
- Status approach
o E.g. age-based categories- clear line.
- Functional approach
o Individualised assessment of decision-making ability.
Can this individual make this particular decision.
- Which is more protective of autonomy?
