CONSENT AND CAPACITY
TREATING ADULTS WITH CAPACITY
The law is largely found in the Mental Capacity Act 2005 and associated case law. The Act's
provisions are founded in;
Trespass to the person (battery)
Actions in the tort of negligence for failure to disclose information
Criminal Offences
Any touching of another without valid consent is a battery in tort - it does not have to result in harm (i.e.
Taking blood pressure). Where consent has been given but was based on inadequate disclosure of
information, an action in battery will fail unless there was fraud, misrepresentation or duress.
Strict interpretations suggest even heaving breathing could constitute a battery in law.
Chatterton v Gerson [1981]
Chatterton had a post-operative scar which resulted in chronic pain. She decided to have an operation
blocking her sensory nerve. Her doctor did not inform her of the risk of losing sensation in her limbs as
a result of the operation. She lost sensation in one of her legs. Chatterton sued under the tort of battery
on the basis that her consent was not obtained due to the lack of disclosure.
Bristow J held that 'once the patient is informed in broad terms of the nature [and purpose] of the
procedure which is intended, and gives her consent, that consent is real, and the cause of action on
which to base a claim for failure to go into risks and implications is negligence, not trespass.'
(emphasis added). Not being told of a risk is not enough to invalidate consent.
This therefore begs the question of when consent is valid. How much does a patient have to be told?
R v Richardson [1999]
Patients received dental treatment from the defendant without being informed that the defendant was
suspended from the General Dental Council's Register. The patients stated they would not have
consented had they known of the dentist's suspension.
Held that the patients consent was in fact valid. There was no fraud as to the identity of the person
performing the treatment. The fraud related to the defendant's right to practice Dentistry.
R v Tabassum [2000]
Breast examinations were conducted by the defendant upon members of the public under the pretence
of cancer research. Upon police investigation, no evidence of research was discovered and it became
clear that the defendant had no medical qualifications.
Held the consent was invalid. They were consenting to touching for medical purposes not to indecent
behaviour, there was consent to the nature of the act but not its quality.
Mohr v Williams (1905)
American case. The patient signed a consent form to an operation on her right ear. Whilst she was
anaesthetised, the defendant discovered the disease to be emanating from the patient's left ear and
performed surgery on that ear instead.
,Held the consent was invalid as the doctor had performed a different operation to which the patient had
consented to. Had there been an emergency the courts held that the decision may have been different,
there was no emergency in this case and the courts couldn't condone a doctor performing any surgery
they wish.
Ashcraft v King [1988]
American case. The patient consented to a blood transfusion, provided that the blood used was 'family
blood'. The hospital ignored the patient's request and used stranger's blood for the transfusion, with the
result that she contracted HIV.
Held that the consent was invalid. It is recognised that a person may place conditions on their consent
and a doctor who exceeds these conditions is liable for battery as it shows 'wilful disregard of the
plaintiffs rights'.
Re T (Adult: Refusal of Treatment) [1993]
Brought on behalf of a woman who required a blood transfusion refused to consent to one under the
(undue) influence of her mother, who was a devout Jehovah's Witness, even in the event that she
would die. Explicit consent. Whilst unconscious, the woman had been given a blood transfusion
regardless.
Held that, though every adult has the right and capacity to refuse medical treatment, this presumption
of capacity can be overridden upon a determination that factors such as confusion, unconsciousness,
fatigue or shock affect the patient's decision. Doctor must consider whether the patient's decision was
made independently. In this case it was not - undue influence was operating.
For full analysis of judgment see Medical Reading Document
Putting aside notorious cases such as that of Ian Paterson or Harold Shipman, it is extremely rare for a
doctor to be charged with a criminal offence. The punitive aims of criminal law are not generally
appropriate as injury in a medical setting is generally caused inadvertently or negligently.
The potential for criminal liability is present in ss.18, 20 and 47 of the Offences Against the Person
Act 1861 (GBH, bodily injury, assault occasioning bodily harm respectively).
Battery – Doctors did not ask.
Negligence – Doctor was not told what might happen, the risks.
PATIENT AUTONOMY
LB of Lambeth v MCS [2018]
The Columbian patient suffered a cardiac arrest while in the UK in 2014 and remained confined in the
hospital 4 years later, despite repeated requests to return to Columbia. Largely in part due to
administrative miscommunication.
Court ruled in favour of the plaintiff. Mr Justice Newton stated ‘If the authority had done what it should
have done in a timely professional manner, not only could they have saved themselves over £100,000
a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have
avoided P the years of misery from being kept a prisoner here, against her will’.
SoS for Home Department v Robb [1995]
,Brought by prison officers regarding prisoners who were refusing to eat. They didn’t know if they were
allowed to sit back and watch the hunger strike or if they had to force-feed the inmates in order to save
their lives.
Thorpe J held that ‘if an adult of sound mind refuses, however unreasonably, to consent to treatment
or care by which his life would or might be prolonged, the doctors responsible for his care must give
effect to his wishes even though they do not consider it to be in his best interests to do so.’
The issue rests on capacity. If an adult of sound mind refusing, however unreasonably, the doctor
responsible must give effect to their wishes. This idea is central to the Mental Capacity Act 2005. It
would have been a battery to force-feed those patients as they are of sound mind.
It is clear that the jurisprudence of Article 8 ECHR, the right to privacy and family life, underpins the
patient’s right to self-determination when refusing or consenting to treatment.
COVERT MEDICATION – Was and still is common medical practice taking place predominantly in care
homes, this is where medicines are hidden into foods so that patient’s will take them.
Re G [2016]
The applicant, aged 92, had dementia and lacked capacity. During proceedings it became apparent
that part of her care plan at the home where she lived involved the administration of medication
covertly. No conditions had been placed on the standard authorisation. It was agreed that the decision
to administer thyroxin covertly in the applicant’s best interest was proportionate and necessary at the
time it was taken. Diazepam was subsequently introduced, four months into the authorised maximum
12 month period. This addition had not been communicated to the local authority or the relevant
person’s representative. Plaintiff was challenging the standard authorisation for the deprivation of the
applicant’s liberty for 12 months.
Held that for lawful covert medication, there must be present;
(S) Full consultation with healthcare professionals and family
(ii) Existence had to be clearly identified within the best interests assessment and Sch.A1
authorisation
(iii) If longer than 6 months, there should be clear provision for regular (possibly monthly) review
of the care and support plan
(iv) Reviews at regular intervals involving family and healthcare professionals
(v) Proof that maximum period is justified
(vi) Any change of medication or treatment should trigger a review
Patient autonomy is not an absolute right, it consists of two legal provisos;
1. The right to refuse, not demand treatment (Lord Phillips in R (on the appeal of Burke) v
General Medical Council [2005]).
2. It is conditional upon the patient’s mental capacity.
The right in relation to patient autonomy is completely dependent on capacity – it is a qualified right.
MENTAL CAPACITY
The legal position is primarily governed by the Mental Capacity Act 2005, much of which came into
effect in 2007. As the Act merely codifies what was already established in common law, it is generally
suitable to use pre-2005 cases when substantiating provisions of the Act.
, The MCA 2005 does not apply to persons under the age of 16.
S.1(2) – All adults are presumed to have capacity. They have to rebut the presumption on the balance
of probabilities.
Re C (Adult: Refusal of Treatment) [1994]
Test for incapacity originates from this case. C had been admitted to a secure hospital as a patient
under Part III of the Mental Health Act 1983 because of his paranoid schizophrenia. He now sought an
injunction to prevent the amputation of his gangrenous foot without his written consent. The patient’s
persecutory delusions (he was a brilliant doctor who could cure his gangrene with simply a touch) might
have prevented him from weighing the information relevant to having his leg amputated because of
gangrene, which he was perfectly capable of understanding and retaining that information (which the
court said was very significant), but they did not.
Held that a person may have capacity to manage his affairs not withstanding that he has schizophrenia.
The staff had not done enough to rebut the (really strong) presumption that he had capacity. The
strength of the evidence in rebuttal is paramount. It wasn’t so much the impairment, it was the reasons
– if you take away his delusions, he still has religious beliefs that he wants to ‘meet his maker whole’.
These beliefs could not be diminished.
For academic comment on this case, see Stern's case comment in Medical Reading Document.
One of the experts in this case was asked about how he tests capacity. He scribbled this down on a
brown envelope which was used in the judges decision - this formed the basis for the Act.
TREATING ADULTS WITH CAPACITY
The law is largely found in the Mental Capacity Act 2005 and associated case law. The Act's
provisions are founded in;
Trespass to the person (battery)
Actions in the tort of negligence for failure to disclose information
Criminal Offences
Any touching of another without valid consent is a battery in tort - it does not have to result in harm (i.e.
Taking blood pressure). Where consent has been given but was based on inadequate disclosure of
information, an action in battery will fail unless there was fraud, misrepresentation or duress.
Strict interpretations suggest even heaving breathing could constitute a battery in law.
Chatterton v Gerson [1981]
Chatterton had a post-operative scar which resulted in chronic pain. She decided to have an operation
blocking her sensory nerve. Her doctor did not inform her of the risk of losing sensation in her limbs as
a result of the operation. She lost sensation in one of her legs. Chatterton sued under the tort of battery
on the basis that her consent was not obtained due to the lack of disclosure.
Bristow J held that 'once the patient is informed in broad terms of the nature [and purpose] of the
procedure which is intended, and gives her consent, that consent is real, and the cause of action on
which to base a claim for failure to go into risks and implications is negligence, not trespass.'
(emphasis added). Not being told of a risk is not enough to invalidate consent.
This therefore begs the question of when consent is valid. How much does a patient have to be told?
R v Richardson [1999]
Patients received dental treatment from the defendant without being informed that the defendant was
suspended from the General Dental Council's Register. The patients stated they would not have
consented had they known of the dentist's suspension.
Held that the patients consent was in fact valid. There was no fraud as to the identity of the person
performing the treatment. The fraud related to the defendant's right to practice Dentistry.
R v Tabassum [2000]
Breast examinations were conducted by the defendant upon members of the public under the pretence
of cancer research. Upon police investigation, no evidence of research was discovered and it became
clear that the defendant had no medical qualifications.
Held the consent was invalid. They were consenting to touching for medical purposes not to indecent
behaviour, there was consent to the nature of the act but not its quality.
Mohr v Williams (1905)
American case. The patient signed a consent form to an operation on her right ear. Whilst she was
anaesthetised, the defendant discovered the disease to be emanating from the patient's left ear and
performed surgery on that ear instead.
,Held the consent was invalid as the doctor had performed a different operation to which the patient had
consented to. Had there been an emergency the courts held that the decision may have been different,
there was no emergency in this case and the courts couldn't condone a doctor performing any surgery
they wish.
Ashcraft v King [1988]
American case. The patient consented to a blood transfusion, provided that the blood used was 'family
blood'. The hospital ignored the patient's request and used stranger's blood for the transfusion, with the
result that she contracted HIV.
Held that the consent was invalid. It is recognised that a person may place conditions on their consent
and a doctor who exceeds these conditions is liable for battery as it shows 'wilful disregard of the
plaintiffs rights'.
Re T (Adult: Refusal of Treatment) [1993]
Brought on behalf of a woman who required a blood transfusion refused to consent to one under the
(undue) influence of her mother, who was a devout Jehovah's Witness, even in the event that she
would die. Explicit consent. Whilst unconscious, the woman had been given a blood transfusion
regardless.
Held that, though every adult has the right and capacity to refuse medical treatment, this presumption
of capacity can be overridden upon a determination that factors such as confusion, unconsciousness,
fatigue or shock affect the patient's decision. Doctor must consider whether the patient's decision was
made independently. In this case it was not - undue influence was operating.
For full analysis of judgment see Medical Reading Document
Putting aside notorious cases such as that of Ian Paterson or Harold Shipman, it is extremely rare for a
doctor to be charged with a criminal offence. The punitive aims of criminal law are not generally
appropriate as injury in a medical setting is generally caused inadvertently or negligently.
The potential for criminal liability is present in ss.18, 20 and 47 of the Offences Against the Person
Act 1861 (GBH, bodily injury, assault occasioning bodily harm respectively).
Battery – Doctors did not ask.
Negligence – Doctor was not told what might happen, the risks.
PATIENT AUTONOMY
LB of Lambeth v MCS [2018]
The Columbian patient suffered a cardiac arrest while in the UK in 2014 and remained confined in the
hospital 4 years later, despite repeated requests to return to Columbia. Largely in part due to
administrative miscommunication.
Court ruled in favour of the plaintiff. Mr Justice Newton stated ‘If the authority had done what it should
have done in a timely professional manner, not only could they have saved themselves over £100,000
a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have
avoided P the years of misery from being kept a prisoner here, against her will’.
SoS for Home Department v Robb [1995]
,Brought by prison officers regarding prisoners who were refusing to eat. They didn’t know if they were
allowed to sit back and watch the hunger strike or if they had to force-feed the inmates in order to save
their lives.
Thorpe J held that ‘if an adult of sound mind refuses, however unreasonably, to consent to treatment
or care by which his life would or might be prolonged, the doctors responsible for his care must give
effect to his wishes even though they do not consider it to be in his best interests to do so.’
The issue rests on capacity. If an adult of sound mind refusing, however unreasonably, the doctor
responsible must give effect to their wishes. This idea is central to the Mental Capacity Act 2005. It
would have been a battery to force-feed those patients as they are of sound mind.
It is clear that the jurisprudence of Article 8 ECHR, the right to privacy and family life, underpins the
patient’s right to self-determination when refusing or consenting to treatment.
COVERT MEDICATION – Was and still is common medical practice taking place predominantly in care
homes, this is where medicines are hidden into foods so that patient’s will take them.
Re G [2016]
The applicant, aged 92, had dementia and lacked capacity. During proceedings it became apparent
that part of her care plan at the home where she lived involved the administration of medication
covertly. No conditions had been placed on the standard authorisation. It was agreed that the decision
to administer thyroxin covertly in the applicant’s best interest was proportionate and necessary at the
time it was taken. Diazepam was subsequently introduced, four months into the authorised maximum
12 month period. This addition had not been communicated to the local authority or the relevant
person’s representative. Plaintiff was challenging the standard authorisation for the deprivation of the
applicant’s liberty for 12 months.
Held that for lawful covert medication, there must be present;
(S) Full consultation with healthcare professionals and family
(ii) Existence had to be clearly identified within the best interests assessment and Sch.A1
authorisation
(iii) If longer than 6 months, there should be clear provision for regular (possibly monthly) review
of the care and support plan
(iv) Reviews at regular intervals involving family and healthcare professionals
(v) Proof that maximum period is justified
(vi) Any change of medication or treatment should trigger a review
Patient autonomy is not an absolute right, it consists of two legal provisos;
1. The right to refuse, not demand treatment (Lord Phillips in R (on the appeal of Burke) v
General Medical Council [2005]).
2. It is conditional upon the patient’s mental capacity.
The right in relation to patient autonomy is completely dependent on capacity – it is a qualified right.
MENTAL CAPACITY
The legal position is primarily governed by the Mental Capacity Act 2005, much of which came into
effect in 2007. As the Act merely codifies what was already established in common law, it is generally
suitable to use pre-2005 cases when substantiating provisions of the Act.
, The MCA 2005 does not apply to persons under the age of 16.
S.1(2) – All adults are presumed to have capacity. They have to rebut the presumption on the balance
of probabilities.
Re C (Adult: Refusal of Treatment) [1994]
Test for incapacity originates from this case. C had been admitted to a secure hospital as a patient
under Part III of the Mental Health Act 1983 because of his paranoid schizophrenia. He now sought an
injunction to prevent the amputation of his gangrenous foot without his written consent. The patient’s
persecutory delusions (he was a brilliant doctor who could cure his gangrene with simply a touch) might
have prevented him from weighing the information relevant to having his leg amputated because of
gangrene, which he was perfectly capable of understanding and retaining that information (which the
court said was very significant), but they did not.
Held that a person may have capacity to manage his affairs not withstanding that he has schizophrenia.
The staff had not done enough to rebut the (really strong) presumption that he had capacity. The
strength of the evidence in rebuttal is paramount. It wasn’t so much the impairment, it was the reasons
– if you take away his delusions, he still has religious beliefs that he wants to ‘meet his maker whole’.
These beliefs could not be diminished.
For academic comment on this case, see Stern's case comment in Medical Reading Document.
One of the experts in this case was asked about how he tests capacity. He scribbled this down on a
brown envelope which was used in the judges decision - this formed the basis for the Act.
