Incompetent Adults

Dr Ciara Staunton

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Consent

• Ethical basis of consent

• Format of consent

• Elements of consent
1. Voluntary
2. Informed
3. Capacity

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Capacity- General

• The common Law test for establishing capacity

• Re C,
• Gillick
• Re MB

• Mental Capacity Act 2005

• GMC guidelines on consent

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Re C

• In-patient at Broadmoor; paranoid schizophrenia. Delusions that he

was a great doctor.

• On the facts, court held he did understand purpose and effect of

treatment he was refusing and granted his application to refuse to
have his foot amputated.

• He understood doctor’s diagnosis. The fact that he disagreed did not

mean he therefore lacked capacity. And so he was entitled to refuse
treatment. (Actually his foot recovered).

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Common Law

• Re C Criteria:
• Ability to comprehend and retrain information
• Ability to believe the information and
• Ability to weigh it in the balance

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Re MB (1997) 2 FLR 426

• Temporary factors may erode capacity

• “fear and panic” may ‘destroy capacity’
• She was suffering from “an impairment or disturbance of her mental
functioning”

• Re T (1992)
• ‘The more serious the decision the greater the capacity required’

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Summary

• “Law adopts a combination of status and functional approaches... All

adults are presumed to be competent, and all children under 16
presumed to be incompetent- Can be rebutted by evidence of
person’s actual decision-making capacity.” (Jackson)

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Summary pre- MCA

• Capacity is a question of fact in every case and requires that the

patient is able to understand what is involved in the decision to be
taken (Gillick)

• Capacity maybe lost or absent temporarily e.g. through an

accident (Re MB) or permanently absent (Bland)

• A patient may have capacity to make some but not all medical
treatment decisions (Re T)
• Issue specific: may have capacity to make some decisions but not others.

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Law Commission Mental Capacity(1995)
Report No 231

• Status approach-categories of patients are treated as

incompetent e.g. Age-based
 
• Outcome approach
 
• Functional approach- looks at individual ‘understanding’ to find
out if one has capacity

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Law Commission Mental Capacity(1995)
Report No 231
• The definition of Incapacity:
• “The functional approach means that the new definition of incapacity would
emphasise its decision-specific nature…”

• Can individual understand nature and effect of decision?

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Mental Capacity Act 2005
General principles

• 1 (2) A person must be assumed to have capacity unless it is established

that he lacks capacity.

•   (3) A person is not to be treated as unable to make a decision unless all

practicable steps to help him to do so have been taken without success.

• (4) A person is not to be treated as unable to make a decision merely

because he makes an unwise decision.

• (5) An act done, or decision made, under this Act for or on behalf of a
person who lacks capacity must be done, or made, in his best interests.
 
NB: A person can make an unwise or irrational decision!
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Mental Capacity Act 2005

• Re B (2002) held
• “doctors must not allow their emotional reaction to or strong disagreement
with the decision of the patient to cloud their judgment …in whether the P
has the capacity to make the decision.”
• “The view of the P may reflect a difference in values rather than an absence
of competence.”

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MCA 2005: test for incapacity

• 2 stage test:

1. Status test

2. Functional test

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MCA 2005: test for incapacity

• 2  (1) For the purposes of this Act, a person lacks capacity in

relation to a matter if at the material time he is unable to make a
decision for himself in relation to the matter because of an
impairment of, or a disturbance in the functioning of, the mind
or brain.
• (2) It does not matter whether the impairment or disturbance is
permanent or temporary.

• Code of Practice 2007: e.g drug abuse, concussion, dementia,

mental illness.

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MCA 2005: test for incapacity

• (3) A lack of capacity cannot be established merely by reference to

• (a) a person's age or appearance, or 
• (b) a condition of his, or an aspect of his behaviour, which might lead
others to make unjustified assumptions about his capacity. 

• Merely: does this mean can take into account if other reasons?

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S.3 Inability to make decisions

• 3 (1) For the purposes of section 2, a person is unable to make a

decision for himself if he is unable
• (a) to understand the information relevant to the decision, 
• (b) to retain that information, 
• (c) to use or weigh that information as part of the process of making the
decision, (e.g. understand but are in panic – needle phobia cases- that are
unable to weigh up the info to make a decision) or 
• (d) to communicate his decision (whether by talking, using sign language or
any other means). 

• Common Law test.  

• P only needs to be able retain information temporarily to satisfy test. (d) is
an addition to the Re C test

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Making irrational decisions

• P can make an irrational decision but is there a problem in the

application?

• Re MB: “ panic, indecisiveness and irrationality in them selves do not

amount to incompetence, but may be symptoms or evidence of
incompetence..”

• Jackson: deciding line between irrational decisions by competent Ps

which must be respected and irrational decisions which are evidence
of incompetence is difficult- e.g. Anorexic patients.

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NHS Trust v T (Adult Patient: Refusal
of Medical Treatment)
• T suffered from borderline personality disorder. Tended to need
blood transfusions but sought to execute AD prohibiting blood
transfusions.

• T considered her blood to be evil and would contaminate any

new blood transfused into her.

• Held
• Irrational decisions should not be equated with capacity
• But Miss T’s view of blood considered to be such a ‘misconception of
reality’ that indicated her lack of capacity

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Helping Decisions

• S.1(3) a person is not to be treated as unable to make a decision

unless all practicable steps to help him to do so have been taken
without success.
• s.3(2) and code of practice guidance.

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Re MM (2007)
• 39 year old woman - learning disabilities &schizophrenia.
• Social workers took view she was at risk because of her relationship
with K who has a psychopathic disorder and encouraged her to live
rough.
• Applied for an order to protect M.

• Held-
• M did have capacity to have sexual relations and that could not be stopped
• did not have capacity to decide where she should live and with whom.
• So she was to live in LA accommodation but could continue to meet K.
• Art 8 considerations relevant here.

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Recent cases…

• Heart of England NHS Foundation Trust v JB [2014] EWHC 342

• Re SB (a patient) (capacity to consent to termination) [2013]

EWHC 1417

• King’s College NHS Foundation Trust v C [2015] EWCOP 80

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Best interests

•   4 (1) In determining for the purposes of this Act what is in a

person's best interests, the person making the determination must
not make it merely on the basis of
• (a) the person's age or appearance, or
• (b) a condition of his, or an aspect of his behaviour, which might lead others
to make unjustified assumptions about what might be in his best interests.

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Best interests
• (2) The person making the determination must consider all the relevant circumstances and, in
particular, take the following steps

• (3) He must consider

• (a) whether it is likely that the person will at some time have capacity in relation to the
matter in question, and (i.e. if can wait, should do so until regains capacity; however, in an
emergency, can treat to prevent death or serious harm: Re F).
• (b) if it appears likely that he will, when that is likely to be.

• (4) He must, so far as reasonably practicable, permit and encourage the person to participate,
or to improve his ability to participate, as fully as possible in any act done for him and any
decision affecting him.

• (5) Where the determination relates to life-sustaining treatment he must not, in considering
whether the treatment is in the best interests of the person concerned, be motivated by a
desire to bring about his death.

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Best interests

• (6) He must consider, so far as is reasonably ascertainable

• (a) the person's past and present wishes and feelings (and, in particular,
any relevant written statement made by him when he had capacity),
• (b) the beliefs and values that would be likely to influence his decision if he
had capacity, and
• (c) the other factors that he would be likely to consider if he were able to
do so.

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Best interests

• Not just a clinical assessment!

• Must consider P’s views & values

• But what if there is a conflict with known previous views of the P?

• Note difficulties in cases regarding considering P’s wishes/feelings

• Ethically what about protecting their dignity; what if they resist

treatment- is that the best outcome?

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MCA: Best interests test & Patient’s views

• Re S and S (2009)- current views of P should carry great weight

but are not conclusive.

• A primary Care Trust v AH (2008)-P suffered from epilepsy-

dangerous if not treated- and lived with mum, his main carer. Mum
disagreed with medical advice and sometimes did not follow it. She
objected to his assessment at the local hospital but not at another
unit. P had same view.
• Held they were close and not clear whether was P’s own views or those
of his mothers. Better if he was assessed quickly but with her
cooperation otherwise he would admitted to the local hospital using
reasonable force, if necessary.

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MCA: Best interests test & Patient’s views

• Re MM (2007) Munby J:
• “MM’s welfare is paramount consideration…best interests involves a
welfare appraisal in the widest sense, taking into account, where
appropriate, a wide range of ethical, social, moral, emotional and
welfare considerations…”

• Re M (2009) Munby J said was “case and fact specific.”

• Listed factors to determine weight to be attached to P’s views including
amount of incapacity; strength and consistency of views; can their views
be accommodated within court’s assessment of their best interests?

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Aintree University Hospital v James (2013)
SC

• Mr James was 68 year old who was seriously ill and had been in
intensive care for some 7 months. Doctors applied for declarations
as to the lawfulness of withholding further invasive treatment and
CPR.

• At first instance court refused

• CA was satisfied, having had regard to new evidence P’s condition,

that the declarations were in his best interests.

• Supreme Court granted permission to appeal even though Mr

James had died shortly after the CA hearing.
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Aintree University Hospital v James (2013)
SC

• Dismissed the appeal although disagreed with CA’s views.

Considered the best interests test:
• P’s own wishes are of central importance in best interests
decision making. There is a need to see the patient as an
individual, with his own values, likes and dislikes, and to
consider his best interests in a holistic way.

• The Supreme Court considered what the meaning of the

terms ‘futility’ and ‘no prospect of recovery’ in the Code
of Practice to the MCA 2005 meant, in the context of the
provision of life-sustaining treatment
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Aintree University Hospital v James (2013)
SC

• “The most that can be said, therefore, is that in considering the

best interests of this particular patient at this particular time,
decision-makers must look at his welfare in the widest sense, not
just medical but social and psychological; they must consider the
nature of the medical treatment in question, what it involves and
its prospects of success; they must consider what the outcome of
that treatment for the patient is likely to be; they must try and put
themselves in the place of the individual patient and ask what his
attitude to the treatment is or would be likely to be; and they must
consult others who are looking after him or interested in his
welfare, in particular for their view of what his attitude would be.”
(Lady Hale para 39)

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Aintree University Hospital v James (2013)
SC
• In rejecting the test of the patient’s views and wishes as an objective
one she held

“The purpose of the best interests test is to consider matters from the
patient’s point of view. That is not to say that his wishes must prevail,
any more than those of a fully capable patient must prevail. We cannot
always have what we want. Nor will it always be possible to ascertain
what an incapable patient’s wishes are.

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Aintree University Hospital v James (2013)
SC
• Even if it is possible to determine what his views were in the past, they
might well have changed in the light of the stresses and strains of his
current predicament. In this case, the highest it could be put was, as
counsel had agreed, that ‘It was likely that Mr James would want
treatment up to the point where it became hopeless’. But insofar as it is
possible to ascertain the patient’s wishes and feelings, his beliefs and
values or the things which were important to him, it is those which
should be taken into account because they are a component in making
the choice which is right for him as an individual human being.” (Lady
Hale para 45).

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Patient's views – cont’d

• A Local Authority v E [2012] EWHC 1639

• Wye Valley NHS Trust v B [2015] EWCOP 60

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Consulting others

• S 4 (7)- consulting carers and family members

• Winspear v City Hospitals Sunderland NHS Foundation Trust [2015]

EWHC 3250

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Best Interests- general

• DN NHS foundation v PS (2010)-PS had severe learning disability.

Cancer of uterus and advised to have hysterectomy. She had fear of
needles and hospitals. Trust applied for permission to use force or
sedation if necessary.
• Held operation essential and no alternatives. Could sedate her to have it
carried out.

• Dorset CC v EH (2009)- EH was 82 with Alzheimer’s. CC applied for

order to remove her to a home using reasonable force, if necessary.
Official Solicitor concerned about her loss of independence and not
in her best interests.
• Held best interests test applied and balance in favour of removal to a care
home.

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Incompetent adults pre-MCA

• Re F [1990] 2 AC 1
• 36 year old woman voluntary in-patient at mental hospital. Low mental age.
Sexual relationship with patient. Mother and staff felt needed sterilisation.
• Granted by HL: would be lawful as procedure would be in her best interests.
• Treatment provided to incompetent adults could be justified on basis of
doctrine of necessity. If it was in best interests of P.
• Lord Goff: a doctor would act in the best interests of a patient if “ a
responsible and competent body of relevant professional opinion” would
support the doctor’s conduct. (Bolam test)
• Criteria that informs this opinion is “life, health or well-being” of the patient.
• Lord Brandon:  ” The operation or other treatment will be in their best
interests if, but only if, it is carried out in order either, to save their lives, or to
ensure improvement or prevent deterioration in their physical or mental
health.”

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Incompetent adults pre-MCA

• Re Y (1997)
• Y was incompetent and her sister needed life saving bone marrow transplant.
Y was suitable donor. Declaration allowed that Y’s bone marrow be used even
though would be of no medical benefit to Y.
• Court took into account wider interest such as family benefit, social and
psychological considerations. Y’s mother would continue to spend time with
her and so on.

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Treatment of those lacking capacity

• Who can make a decision?

• A person may carry out acts in connection with care and treatment
on somebody who lacks capacity in their best interests.

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Treatment of those lacking capacity

• Who can make a decision?

• Advance decision
• Last Power of Attorney
• Deputy
• Persons caring
• Court

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Proxy Decision Making

• Court can appoint Deputy if no LPA or AD - will be unusual.

• G v E (2010)
• No need to appoint carers/family as deputies for general informal day-to day
decisions as long as are acting in their best interests.
• Only where case required management or disagreement or difficult decision
then application to court could be made. E.g make ongoing decisions after
consultation with parties.
• Cannot refuse consent to life-sustaining treatment.

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 Proxy Decision Making

• Court of Protection-may make declarations as to capacity and on the

lawfulness of an act.

• Need to take into account the criteria for determining best interests
under s. 4.

• Code of Practice specifies cases that should be brought before court.

• M -v- A Hospital [2017] EWCOP 19 and NHS Trust -v- Y [2017] EWHC
2866 (QB)

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Proxy Decision Making - LPA

• Change to Common Law

• P can appoint donee/s with Lasting Power of Attorney with

authority to make decisions (consent to or refuse treatment as set
out in the LPA)- subject to provisions under Act inc. best interests
test

• Disputes between attorney and doctor may be referred to court.

• P must be 18+; use a prescribed form; can cover most types of

treatment decisions and only covers life sustaining treatment if the
doc specifically provides for this
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Independent mental capacity advocates

• Find out their wishes and feelings

• Not decision makers. Support and represent P

• Can obtain further medical opinion

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Summary

• Adults presumed to have capacity

• 2 stage test to capacity

1. Status test
2. Functional test

• Decision made based on best interests

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