Handout 5: Common Law and the Incompetent Patient

Consent in common law

Acknowledgment. This handout has been developed with advice from Dr Kristina Stern, Lecturer in Medical Law, Centre of Medical Law and Ethics, King's College, London.

1. Competent adults have a right to refuse medical treatment, even if this refusal results in death or permanent injury.
2. If a patient is refusing beneficial treatment the doctor needs to make two judgments before accepting that the patient has the right to refuse.

Judgment 1. Has the patient the necessary capacity to refuse treatment (i.e. is the patient [sufficiently] competent)? (See handout 6.5 - Consent to Treatment)

Judgment 2. Has anyone influenced the patient to such an extent that the patient's decision has been coerced and is no longer voluntary?

Situations where consent is not needed in common law

The general requirement is that a doctor may touch a patient only with the patient's consent (otherwise it is a battery). Exceptions to this are:

1. Necessity: where the doctor is of the opinion that treatment is in the patient's best interests and the patient is not competent to give valid consent to that treatment (the exact scope of this is unclear). Where the patient is only temporarily incompetent, treatment is only lawful if it would be unreasonable to delay until the patient recovers competence.
2. Emergency: in order to prevent immediate serious harm to a patient or to others or to prevent a crime

How is the judgment or competence to be made?

The patient must be capable of understanding the proposed treatment in general terms and of communicating a decision. The Courts have given little guidance on the question of how to decide the question of whether the patient has sufficient capacity to understand and be competent.

One point that is clear is that the fact that refusal of treatment will lead to dire results or may appear to be irrational, is not itself sufficient reason to conclude that the patient is incompetent.

An inability to carry out any of the following three stages might be evidence that a patient is not competent to take a particular treatment decision.

1. The comprehending and retaining of treatment information
2. Believing this information
3. Weighing the information in the balance and arriving at a choice

The relevant judgments uphold the idea that competence is specific to the treatment decision.

The case of the 68-year-old patient C was recently heard. C suffered from schizophrenia. He developed a gangrenous leg. The view of the responsible clinician was that his leg should be amputated. The clinician thought that unless the leg was amputated the patient would probably die. The patient agreed to conservative management, which averted the immediate threat to life. The hospital refused to give an undertaking that the leg would not be amputated in the future should C develop gangrene again. C applied for an injunction preventing the hospital (or anyone else) from amputating his leg without his express consent.

The judge applied the principles above and concluded that the fact that C suffered from schizophrenia did not necessarily mean that he lacked the capacity to make the decision about the leg. This case makes it clear that competence is to be judged as specific to the relevant decision. It is also pioneering in upholding the validity of a patient's "advance directive" (i.e. consent or refusal in advance of the situation in which treatment is proposed).

The incompetent patient

A central point in English law is that there is no proxy consent for an adult. Thus no person (for example the patient's next of kin) can either give or withhold consent for the operation on behalf of the patient.

As discussed in Handout 6.5 (Consent to treatment): Have we got a consent form? Treatment is only lawful under the doctrine of necessity i.e. when the patient is not capable of consenting to a particular treatment and that treatment is judged by doctors to be in the patient's best interests. The doctor should make the judgment of what is in the best interests of the patient and be prepared to defend this judgment. Talking with the next of kin may be highly relevant in order to judge those best interests, and to understand the patient's own values, but the next of kin is not able to give or withhold the consent.

In Re F, 1990 (which concerned the sterilization of a young woman with learning difficulties who would never be competent to give consent for the sterilization) the following judgment was made: "a doctor can lawfully give surgical or medical treatment to adult patients incapable of consenting provided the operation is in their best interests". The court will determine whether or not treatment given to an incompetent adult patient was in his best interests using the Bolam test: would a responsible body of medical opinion have affirmed that the treatment was in the patient's best interests.

For further information on Treating People without their Consent:

• the UK Clinical Ethics Network web site has a detailed discussion around these issues .
• Hope T, Savulescu J, and Hendrick J - Medical Ethics and Law : the Core Curriculum. Edinburgh: Churchill Livingstone, Elsevier Science, 2003. The main text book used for the University of Oxford Medical Ethics and Law course provides more details for both teachers and their students.
• Hope T - Medical Ethics; a Very Short Introduction. Oxford: Oxford University Press, 2004.
• Ashcroft A, Lucassen A, Parker M, Verkerk M, and Widdershoven G - Case Analysis in Clinical Ethics. Cambridge: Cambridge University Press, 2005.