The Mental Capacity Act 2005 and constent (Advice Style answer)

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Question 1 In this question, there are two main issues to be considered. Firstly, whether Gwen has the capacity to give consent to sterilisation and secondly, whether Gwen has the capacity to refuse to go to hospital for the kidney tests. The Sterilisation The fundamental issue for Gwen is whether she has capacity to consent to receive sterilisation.

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The definition of capacity can be found in s.2(1) of the Mental Capacity Act 2005 (hereinafter referred to as ‘MCA 2005’) that ‘a person lacks capacity in relation to 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’[1]. This provision reflects the point that the MCA 2005 uses an issue-specific definition of capacity. In our question, Gwen is stated as having a moderate learning disabilities. Under para 4.12 of the MCA 2005 Code of Practice[2], a significant learning disabilities is treated as a condition which might involve an impairment or disturbance of the functioning of the brain. But it is arguably that Gwen’s leaning disability is merely assessed as moderate, so she probably has the capacity required to consent to medical treatment. Therefore, the question as to whether Gwen has the required capacity is to be determined in the light of s.3(1) MCA2005[3]. This section sets out that a person is labelled as lacking capacity if he is unable to understand the information; retain that information; use or weigh that information as part of the process of making the decision, or to communicate his decision. This test was derived from the leading case of Re C[4], where held that the patient had the capacity to refuse treatment on the basis that he was able to understand and retain relevant treatment. Applying this to our facts, we are told that Gwen’s behaviour has improved she has been at Greendale, can this be the basis that she may have the ability to understand the nature of sterilisation? Besides this, one important point that should never been left out on our facts is that Gwen has fear of anything to do with doctors, hospitals and medicines. Will this fear affects her capacity to make decision? In Re MB (Caesarean Section)[5], it was held that the needle phobia caused the patient suffering an impairment of her mental functioning and this made her temporarily incompetent to make decision. But it is unlikely to be applied here because the crucial point in the case of Re MB (Caesarean Section)[6] was that the patient needed the treatment so much in order to save her life and that of the baby. While on our facts, the sterilisation suggested is for non-therapeutic reason and thus it is difficult to argue that the Gwen’s fear makes her incompetence. Hence, the answer as to whether Gwen has the capacity to decide is not obvious. On one hand, in the case of A Local Authority v Mrs A and Mr A[7], Bodey J was on the view that it is not necessary to show that the individual understood the broader issues surrounding pregnancy and the realities in bringing up a child in accessing her capacity to give consent on contraception, merely the understanding on proximate issue relating to contraception is sufficient to justify that capacity. Thus, it can be suggested that Gwen seems to have that as she has developed a friendship with a male resident in Greendale and it is reasonable to say that she may acquire the knowledge in relation to sexual intercourse and also the understanding on sterilisation. Whilst on the other hand, it might also be argued that the approach taken by Bodey J[8] is unrealistic. This was put forward by Keywood[9] in her article that it looks illogical to say that a decision made without real understanding on the broader consequences of the particular medical treatment can be regarded as an autonomous decision. It is submitted that the law regarding this area remains unclear and it is difficult to see how the court will decide whether or not Gwen has capacity to refuse the sterlisation. At this point, s.1(2) MCA 2005[10] may play a crucial role as it stresses that a person should be presumed as competence, unless the medical profession can prove otherwise. Since we are unsure as to whether or not Gwen has capacity to decide on the sterilisation, we shall assume that she has. In accordance with the principle laid down in S v St George’s NHS Trust[11], if Gwen has capacity, she has the absolute right to decide whether or not to receive the sterilisation. This means that she cannot be forced to receive the treatment if she does not consent on it, irrespective of the facts that it may be an unwise decision (s.1(4) MCA 2005[12]). If however, Gwen may be regarded as lacking capacity due to her fear and thus, by virtue of s.1(5) of MCA 2005[13], the sterilisation can be carried out if it is in her best interest. So the next question is whether the sterilisation is at Gwen’s best interest? s.4 of MCA 2005[14] sets out a number of factors to be taken into account in determining whether the proposed medical treatment is for the patient’s best interest. Nonetheless, in accordance with para 8.22 of Code of Practice[15], in ascertaining whether a sterilisation is in a patient’s best interest under s.4, the court should follow the approach they have developed in the earlier cases. In Re F (A Mental Patient: Sterilisation)[16], it was held that the ‘best interest’ test is not to be assessed as same as the Bolam test[17]. It was not be sufficient to show that there was a respectable medical opinion in support of sterilisation, but the court must, as affirmed in Re MM (An Adult)[18], also take into account the broader ethical, social, moral and emotional considerations. However, it must be noted that, according to Re B[19], the interests of the cares are not to be taken into account but their views may be persuasive in informing the court what is for the patient’s best interest. Applying this to our facts, the court may take into account the view of the support workers and that of Gwen’s father, but still the final decision is on the court. One case that must be look into together with our facts is the case of Re A (Male Sterilisation)[20]. In this case, A was a 28 years old man who had Down Syndrome. His mother who has now unable to take care of him applied to the High Court for a declaration that the sterilisation operation was at A’s best interest and could be legally acted on him. Thorpe LJ adopted a ‘balance sheet approach’ and it was held that the sterilisation is not in A’s best interest because there being no danger of pregnancy for him. However, since Gwen is a woman and there might be a risk for her to get pregnant by involving in unprotected sexual intercourse, it is likely that the case of Re A can be distinguished from our facts. Further, in Re B[21], Lord Oliver suggested that sterilisation will only be approved if it is a ‘last resort’. A common ground for wanting sterilisation is that there is a worry that the incapacitated person will become pregnant and be unable to deal with the pregnancy or look after the child. But in Re LC[22], the court held that the patient’s carers took care of her very well and it was very unlikely she would become pregnant. Thus, it is unlikely that sterilisation is the last resort for Gwen. Arguably, since Gwen is now under supervisions and the support workers realised the risk that she may get pregnant, they will be more cautious on this issue and hence, it is unlikely that she will get pregnant. Therefore, by following this reasoning, the court may not grant a permission of sterilisation and it cannot be performed on Gwen as it is not considered in her best interest. The Kidney Test The next issue is whether Gwen has the capacity to refuse to go to the hospital for the kidney test. First of all, we will need to determine whether Gwen has fulfilled the requirement set out in s.2[23] and s.3[24] of the MCA 2005 for competency. As mentioned, MCA 2005 introduces issue-specific definition of capacity, this was shown in the leading case of Gillick v West Norfolk and Wishbech AHA[25], where the court was on the view that a patient may be found to have sufficient understanding to be able to consent to a simple course of treatment, but not have sufficient understanding to be able to consent to a complex medical procedure. Further, in Re T[26], Lord Donaldson suggested that ‘the more serious the decision, the greater the capacity required’. In the other words, even if the court decides that Gwen has the capacity to decide on the issue of sterilisation, this does not mean that she is competence enough to refuse the kidney test as her life is now depending on the treatment. By following the judgment is Re MB[27], it is arguably that Gwen’s fear to doctors, hospitals and medicines nominated her mental ability to understand, weigh and retain the information as regards to the proposed kidney test, she is now temporarily incompetence and thus her refusal is invalid and the doctors must send her to the hospital which is clearly an action at her best interest at that moment. But on the other hand, it can be pointed out from our facts that Gwen did allow the doctor to examine her, does this mean that her fear to doctors, hospitals and medicines is not that severe to nominate her capacity to make decision? Again, there is no clear-cut answer. If Gwen is regarded as having capacity to refuse to go to hospital for kidney test, then she cannot be forced to do so even if her life is depending on it, by virtue of the principle laid down in s.1(4) of MCA 2005[28]. This was emphasised in the case of Re MB[29] where the court held that even if the patient’s life and that of her child are depend on the medical treatment, the treatment taken against her wishes would still be regarded as an unlawful infringement to her autonomy. (1992 words) Bibliography Books Herring J, Medical Law and Ethics (4th edn OUP, Oxford 2012) Jackson E, Medical Law, Text Cases and Materials (3rd edn OUP, Oxford 2013) Articles Keywood K, ‘Safeguarding Reproductive Health? The Inherent Jurisdiction, Contraception, and Mental Incapacity’ (2011) 19 MLR 326-333 Electronic Sources Buchanan A, ‘Mental Capacity, legal competence and consent to treatment’ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1079581/ accessed 12 November 2014 Bunting A.P, ‘Guiding Principles in Medical Law: The Ability to Treat’ https://etheses.bham.ac.uk/968/1/Bunting05LLM.pdf accessed on 13 November 2014 –, ‘The Book of “Medical Law and Research” On-Line’ https://www.medreslaw.com/capacity.php accessed 13 November 2014 Tables of Statutes and Cases Table of Statutes Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 4.12). Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 8.22). Mental Capacity Act 2005, s.1 Mental Capacity Act 2005, s.2 Mental Capacity Act 2005, s.3 Mental Capacity Act 2005, s.4 Table of Cases A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Re A (Male Sterilisation) [2000] 1 FCR 193 Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206 Re C (Adults: Refusal of Treatment) [2004] 1 WLR 290 Re F (A Mental Patient: Sterilisation) [1990] 2 AC 1 Re LC (Medical Treatment: Sterilisation) [1997] 2 FLR 258 Re MB (Caesarean Section) [1997] 2 FLR 426 Re MM (An Adult) [2007] EWHC 2003 (Fam) Re T (Adult: Refusal of Treatment) [1993] 2 All ER 649 St George’s Healthcare NHS Trust v S [1998] 3 All ER 673


[1] Mental Capacity Act 2005, s.2(1). [2] Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 4.12). [3] Mental Capacity Act 2005, s.3(1). [4] Re C (Adults: Refusal of Treatment) [2004] 1 WLR 290. [5] Re MB (Caesarean Section) [1997] 2 FLR 426. [6] Ibid. [7] A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam). [8] Ibid. [9] K Keywood, ‘Safeguarding Reproductive Health? The Inherent Jurisdiction, Contraception, and Mental Incapacity’ (2011) 19 MLR 326-333. [10] Mental Capacity Act, s.1(2) [11] St George’s Healthcare NHS Trust v S [1998] 3 All ER 673. [12] Mental Capacity Act 2005, s.1(4). [13] Mental Capacity Act 2005, s.1(5). [14] Mental Capacity Act 2005, s.4. [15] Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 8.22). [16] Re F (A Mental Patient: Sterilisation) [1990] 2 AC 1. [17] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. [18] Re MM (An Adult) [2007] EWHC 2003 (Fam). [19] Re B (A Minor) (Warship: Sterilisation) [1987] 2 All ER 206. [20] Re A (Male Sterilisation) [2000] 1 FCR 193. [21] Re B (A Minor) (Warship: Sterilisation) [1987] 2 All ER 206. [22] Re LC (Medical Treatment: Sterilisation) [1997] 2 FLR 258. [23] Mental Capacity Act 2005, s.2. [24] Mental Capacity Act 2005, s.3. [25] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. [26] Re T (Adult: Refusal of Treatment) [1993] 2 All ER 649. [27] Re MB (Caesarean Section) [1997] 2 FLR 426. [28] Mental Capacity Act 2005, s.1(4). [29] Re MB (Caesarean Section) [1997] 2 FLR 426.

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