denotes premium content | Jan 7 2009 Feature
posted 1 Mar 1999 in Volume 4 Issue 3
Care, consent & competence
Many legal advisers who
have older clients exercise substituted decision making powers, either as
attorneys under enduring powers, or as receivers1. These powers do not, however,
enable decisions about medical or personal care to be made by attorneys or
receivers in respect of individuals who lack mental capacity. Where such
decisions have to be made - sometimes as a matter of life and death, sometimes
as a matter of day to day management - the law is often misunderstood.
The purpose of
this article is to outline the legal position in various circumstances where the
legal adviser may become involved. Most of the principles derive from the common
law; there has been little statutory intervention. Consequently the present law
has the propensity to develop in different ways as needs and circumstances
change. Assuming, however, that the Law Commission's substantial recommendations
on mental incapacity2 are implemented in the not too distant future, there will
be a statutory framework within which mental incapacity itself and a full range
of decision making powers will be defined.
As might be expected, case law tends
to deal with extremes: the termination of life support systems; emergency
caesarean sections; life saving blood transfusions. It must be assumed, however,
that the principles described apply across the board - to simple matters of
personal care as well as to major surgery.
Consent and Inability to
Consent
The starting point is the fundamental principle that medical treatment
(or care) may only be given with the informed consent of the patient. This
principle reflects first the fact that any touching of a patient would otherwise
be tortuous, if not criminal, and secondly that failure to counsel patients in
an appropriate way may be negligent. The Patients' Charter states that all
citizens have the right "to be given a clear explanation of any treatment
proposed, including any risks and alternatives" before they decide whether or
not to give consent.
English law does not permit proxy consent to be given on behalf of an
adult, although adults who have parental responsibility can give consent on
behalf of children. Receivers or attorneys are empowered only in respect of a
person's "property or affairs", and the House of Lords has held that this phrase
does not cover medical decisions3.
Health professionals frequently
misunderstand this position, to the extent of insisting that relatives or carers
give consent on behalf of a patient before treatment can be undertaken. Legally,
however, a proxy cannot in any way validate the treatment of an adult who lacks
capacity to consent - whether such treatment involves major surgery or the
removal of a tooth.
Consequently, wherever a mentally incapable patient needs care, there
must be some justification for administering it without her/his consent. Here
the most important principle is that a health care professional may treat the
patient without consent where such treatment is both "necessary" and in the
patient's "best interest"4. A reasonable professional judgement as to what
course of action will best serve a patient's interests will therefore afford a
defence to actions for trespass or battery. In some circumstances, however,
where very difficult decisions have to be made it will be sensible and desirable
for the professionals involved to seek court approval5.
Where the patient is suffering from a
mental disorder within the definition set out in section 1 of the Mental Health
Act 1983, and has been compulsorily admitted to hospital, treatment can be
provided without consent in the circumstances specified in Part IV of the Act.
In general such treatment must be given for6 the patient's
mental disorder. Other treatment must be justified under the common law
principles described above.
It is clear that a best interests
principle becomes problematic when applied to decisions about where a person
should live or, critically these days, whether or when a person should be
discharged from hospital. The latter point needs to be tested since older people
who have lost mental capacity are daily discharged from hospital in
circumstances where it would be very difficult to argue that their best
interests are being met or that the discharge is "necessary" for them.
Two statutory provisions
impinge in this area, but their scope is limited. The guardianship scheme, set
up under section 7 of the Mental Health Act, explicitly enables a guardian to
require the patient to live in a particular place - such as a nursing home - or
to attend at a specified place for treatment. Guardianship is not appropriate to
coerce unwilling patients. It ought to be appropriately used in respect of older
people who have lost mental capacity and who need protection, because section
7(2) contains a welfare principle, of sorts. However, the definition of mental
disorder in the Mental Health Act excludes people who have dementia or learning
disabilities, unless they are also mentally ill, psychopathic, or showing
challenging behaviour. In practice, therefore, guardianship is of little
significance because it is not available for the group of people who might
benefit from it.
The other relevant provision is section 47 of the National Assistance
Act 1948, which allows the removal of a person to "suitable premises" where he
or she is suffering from grave chronic disease, or is "aged, infirm or
physically incapacitated", living in "unsanitary conditions", and not receiving
proper care and attention. A magistrate's court must authorise removal. The
criteria for removal are the best interests of the person concerned or "serious
nuisance" to other people. This provision has, quite rightly, attracted much
criticism. There is no requirement that the person subject to the order should
lack mental capacity, and there are clear human rights implications.
Consequently section 47 is rarely used.
It is clear, therefore, that many
older people who lack mental capacity are in fact discharged from hospital or
placed in residential care solely on the authority of a "best interests"
principle. This becomes particularly problematic outside the strict healthcare
remit. For instance the use of confinement, restraint or medication to control
elderly dementia sufferers can only be justified under this principle, and is
clearly a contentious issue. At a more mundane level, simple decisions about
eating, dressing and personal hygiene are all subject to the best interests
test.
What is the Test of Capacity?
In general, capacity or competence is
a legal rather than a medical concept, and the test of capacity is functional
rather than outcome based. Capacity is presumed until the contrary is proven,
and is also relative to the decision which has to be taken. So for example, the
threshold of capacity for marriage is different from (and lower than) that for
executing an EPA.
As far as medical treatment or care is concerned the test is whether the
individual can understand the nature and purpose of the proposed treatment or
care, the risks and side-effects that may be involved and the likely
consequences of not receiving treatment. In Re C7 the patient was a paranoid
schizophrenic who was a patient in Broadmoor. His leg had become gangrenous and
his doctors considered that his life would be at risk if an amputation was not
carried out. The patient refused to consent to the operation and sought a
declaration from the court that the surgery should not be carried out without
his consent. The issue for the judge was whether or not the patient had mental
capacity, and it was held that, although the patient's general capacity was
affected by his mental disorder, it had not been shown that he did not
understand the choice he was being asked to make in respect of his leg. He was,
therefore, competent to withhold his consent to the amputation.
Refusal of
Medical Treatment
A competent adult is entitled to
refuse medical treatment or care, whatever the outcome is likely to be.
"A doctor has
no right to proceed in the face of objection, even if it is plain to all,
including the patient, that adverse consequences and even death may result"8.
Where a
patient is detained under the Mental Health Act, treatment for mental disorder
can be given compulsorily, overriding a patient's express refusal. It needs to
be remembered that any treatment or care given to an incompetent person might
have been refused had that person enjoyed mental capacity. To put it another
way, sometimes the necessity/best interests principle can legitimise
questionable decisions and provide a protective umbrella for health or social
care professionals. An extreme example appeared recently in St George's
Healthcare NHS Trust v S9, where a pregnant woman, suffering from
pre-eclampsia, which threatened her life and that of her unborn child, was
sectioned under the Mental Health Act and given an emergency caesarean section,
authorised by a declaration from the High Court. The action was taken because
the patient refused to accept the medical advice that she should have an induced
delivery. After the child was born the patient appealed against the declaration,
and her right to refuse medical treatment, even if that decision affected her
unborn child, was affirmed. The Court of Appeal condemned the use of compulsory
detention for someone whose views may have been regarded as bizarre or
irrational, but who was not mentally disordered.
In practice, of course, innumerable
decisions are taken in respect of incompetent older clients which their
competent selves might have found unacceptable. Again, discharge from hospital
into residential care comes into the frame here. When applied to an adult a best
interests test may be paternalistic - "we know what is best for you" - and may
ignore that person's life experiences. A substituted judgement test is arguably
preferable - with the decision maker trying to put himself or herself in the
patient's shoes. However, it is not always easy to apply. The revised Mental
Health Act Code of Practice purports to address this issue in the aftermath of
the Bournewood case (see below), saying:
"If a patient lacks capacity at the
time of an assessment or review, it is particularly important that both clinical
and social care requirements are considered, and that account is taken of the
patient's ascertainable wishes and feelings and the views of their immediate
relatives and carers on what would be in the patient's best
interests"10.
Last year, in the Bournewood case11 the House of Lords decided
that patients who are admitted voluntarily to hospital to receive treatment for
their mental disorder do not have to be detained under the Mental Health Act,
but may receive treatment on the basis of their best interests and the common
law doctrine of necessity. The proviso is that they must be compliant; if they
resist such treatment they must be sectioned and thus afforded the protection as
well as the constraints of the Mental Health Act. At present, the due process
rights and other protection afforded by the Mental Health Act are only available
for patients suffering from mental disorder in the statutory sense. Most older
people with dementia who resist treatment or care will not have the benefit of
such safeguards.
Advance Refusals
Advance refusals (also referred to as
living wills or advance directives)12 extend the right of refusal to prospective
future treatment in a situation where an adult has become incapable of consent.
Provided that such directives are clear and unequivocal, and are also available
to healthcare professionals at the relevant time, they should be respected. In
the Tony Bland case13, for instance, the House of Lords stated that a patient's
right to refuse treatment extends to a situation where, in anticipation of
entering into a condition such as PVS, he gives clear instructions that, in the
event, he is not to be given medical care, including artificial feeding,
designed to keep him alive.
An advance refusal must of course be
made by a competent person. However, even given such competence, the refusal may
be overridden where compulsory treatment under the Mental Health Act is in
issue, because such treatment never requires the patient's consent.
No English court
has yet been required to determine the validity of an advance refusal made by a
patient who has become incompetent. The principles outlined above are now
generally accepted, however, and clients increasingly make, or seek advice about
making advance refusals. In this context, it would be quite natural to consider
specifying a healthcare proxy who might be given responsibility for making the
treatment decision at the time, in consultation with professionals, and knowing
the patient's wishes. However, given the general rule that proxy consents are
not effective in respect of current treatment, it must be assumed that such
provision would not be determinative, in the sense of laying responsibility for
carrying out the advance refusal on the shoulders of the proxy rather than the
doctor.
Terminating Treatment
A doctor is not required to preserve
the patient's life at all costs, and sometimes that patient's best interests may
require that a life support system is switched off, or active treatment is
terminated. Patients who have capacity may of course refuse life prolonging
treatment, although there is some debate as to whether a patient is entitled to
require others to, for example, switch off life support.
Although in medical wards up and down
the country doctors regularly decide to discontinue active treatment in respect
of elderly patients, this is legally and ethically a very murky area. English
law distinguishes between voluntary passive euthanasia (refusal of life saving
treatment), which is permissible, and active euthanasia, which is homicide.
Where drugs are administered to patients in such doses that their deaths will be
hastened a criminal prosecution is possible, but this does not quite altogether
equate with the doctor's duty to relieve pain and suffering, and with the
principle described above14. The accepted balancing principle seems to be that,
where a patient is terminally ill, "right and proper treatment", which would be
acceptable to a responsible body of the medical profession, may be given in
order to relieve suffering, even if the shortening of the patient's life is then
an incidental outcome.
In the Tony Bland case the House of Lords authorised the
withdrawal of life sustaining treatment in respect of a patient in PVS. Similar
cases are required to be brought to court for consideration prior to the
withdrawal of treatment. Returning to the more mundane example of the elderly
patient whose notes are headed "TLC only", the decision about terminating active
treatment rapidly merges into much broader ethical questions about the rationing
of healthcare services by age, in respect of which there is plenty of evidence.
Clinical decisions not to allocate intensive care beds to elderly patients or
not to offer lifesaving surgery are only one step removed from the termination
of treatment.
When termination is an issue, there is a tendency for doctors to seek to
legitimate difficult decisions by discussing the options, in advance, with
relatives. In one sense, this is good, professional practice. However, relatives
sometimes assume that the treatment decision is their
responsibility; that they must decide whether or not treatment
is to continue, and at what level. Legally, and ethically, this is not the case.
Margaret
Richards. The author is a Solicitor and Community Care Adviser. She offers a
consultancy service on community and residential care issues for firms and other
organisations. And can be contacted on: 0113 278 1810
