Article Gist Quotes
Case Comment: Re C Questions the courts’ approach as to which information Re C should ‘encourage future courts to take
C Kristina Stern, 1994 the patient needs to understand and to what extent, a more active role in determining the scope
O suggesting that it most likely is dependent on the
patient’s status mentally.
of lawful medical treatment’.
N Stern prefers an approach focused on the relationship
between the patient’s ability to weigh the treatment
S information and their mental disorder, using anorexia
nervosa as an example.
E Best Interests, Patient Participation Analyses the best interests standard in the context of ‘Best interests is inherently an elusive and,
N and the Mental Capacity Act 2005
M. Donnelly, 2009
healthcare decisions and focuses on the participative
elements in the MCA.
in some ways, unsatisfactory concept.’
T Highlights arguments in favour of the Act’s participative ‘The participative framework contained in
approach. the MCA is allowed to operate in a
Participative element is the requirement that the meaningful way and that it does not
person lacking capacity should participate in the become simply a rhetorical nicety.’
A process od determining their best interests.
MCA challenges the objective nature of the standard by
N introducing the beliefs and values of the person into
D Anorexia, Capacity, and the Best
the balance sheet approach.
Problematic that incapacity is almost presumed in cases ‘There is an enduring insensitivity to the
Interests: Developments in the involving an individual with anorexia. social and political context of anorexia, and
Court of Protection Since the Signals the retention of medico-legal control over the a persistence of value judgements about the
C Mental Capacity Act 2005 subject. agency of the person with anorexia.’
B. Clough, 2016 Post-MCA case law shows little development of legal
A understanding of the complexity of anorexia and its
P From ‘Doctor Knows Best’ to
impact on the abilities of those with the condition.
Despite involving in the checklist, no particular priority ‘Central problem is that the law inevitably
A Dignity: Placing Adults who lack is given to the patient’s wishes. draws a bright line between those who do,
capacity at the centre of decisions Advocates formalising current best practice in the Court and those who do not have the mental
C about their medical treatment of Protection through the introduction of a series of capacity to make decisions.’
E. Jackson, 2018 rebuttable presumptions, or starting.
I Says that the test for capacity under the MCA operates
T
as a cliff edge.
Presumptions instruct decision-maker and crucially
Y reassure P that if they are held to not have capacity, it
will not mean they have absolutely no decision-making
authority.
Gillick, 20 years on: arrested Acknowledges that the formulation in Gillick was Questions how far Re R and Re W have
development or growing pains? uncertain but asserts this is true of any assessment of ‘overturned the spirit if not the letter of
Anne Morris, 2005 competence, even in the case of an adult. Gillick’.
Gillick is important because it;
o Is a liberal decision emphasising the respect Re E ‘highlights the cost of paternalism’.
given to the wishes of the minor; and
o Drew attention to the fact that there remains
decisions which minors will not be able to
make because they cannot fully appreciate
the consequences.
Draws on Re E as an example of the clearly expressed
wishes of a mature minor being overridden in his
perceived best interests.
Analysing the effect of Gillick should take into account
that not all cases involve life-threatening intervention.
Goodbye Gillick: Identifying and Application of Gillick has revealed several ambiguities.
resolving problems with the MCA provides a definition of capacity that is
concept of child competence significantly more developed and comprehensive than
E. Cave, 2014 Gillick competence – the test is not perfect.
Embracing one concept of capacity for all, the law
would be much more coherent, consistent and
comprehendible both to those applying and those
subject to it.
Advance Directives and the Rocky Three basic criticisms of advance directives; ‘Since all decisions necessarily project into
, Waters of Anticipatory Decision- o Moral the future…the difference between a
Making o Weight given to autonomy contemporaneous and an anticipatory
MacLean, 2007 o Pragmatic implementation decision is purely one of degree rather than
Claims that the protection of autonomy is secondary to type’.
the primary goals of protecting healthcare,
professionals and the patient’s welfare.
Analyses line of caesarean case law, stating that it is
only once the baby has been delivered that the courts
will harp on about self-determination.
Bold comment that what separates the approach in Re
C is that ‘C’s life was unlikely to benefit the community’.
Asserts that the courts will assess the patient’s
competence based on the outcome of the choice they
have made, contradicting the principle that they can
refuse treatment on rational or irrational grounds.
MCA is a ‘mixed bag’ when it comes to advance
directives.
Mama Mia: Serious Shortcomings More transparency is required in the way decisions are ‘Lord Mustill in Bland felt that a decision as
in another (en)forced caesarean published to avoid inaccurate media coverage. This to best interests is as much ethical as
section case would deter women from seeking professional help. medical.’
E. Walmsley, 2014 Judgements need to show clearly how the caesarean
section is in the best interests of the patient and attach
equal importance to her best-interests post-birth
Cases need to engage with the capacity provisions and
participation principle in the MCA 2005.
Autonomy in the Medico-Legal The rule that autonomy rules absolutely is unworkable ‘The law pays loud lip service to autonomy.’
Courtroom: A Principle Fit for in practice.
Purpose If autonomy is as important as it is made out to be in
C. Foster, 2014 the courtroom, the law should be more explicit about
which account of autonomy plays a role.
In reality, trust is more important to most patients than
autonomy is.
Informed Consent and other Fairy Guidance provided by the law is both ad-hoc and post- The Sidaway approach seems to ‘stack the
I Stories hoc deck against successful claims.’
N Michael Jones, 1999 Criticises therapeutic privilege, contrasting Lord
Templeman’s views in Sidaway. Therapeutic privilege is ‘paternalistic in its
F Hard to imagine any court coming up with a detailed assumptions and its goals.’
O set of rules by way of guidance.
P.J. Dawes on Informed Consent Surgeons having to disclose too much information
R reflects either the predicted and long expected increase
M in defensive medicine or an increased awareness that
patients want to know more about their treatment.
E Giving the Reasonable Patient a Middle ground is to recognise the relevance of both the Consent should be seen ‘as both a state of
D Voice: Information Disclosure and patient’s autonomy and the ethical and legal judgment mind and an act of communication.’
the Relevance of Empirical Evidence of the doctor’s behaviour.
Alasdair MacLean, 2005 ‘Until Parliament acts, we are left with the
C task of animating the reasonable person.’
O
Are the Courts excessively The courts treating the medical professional with less ‘The problem with Bolam is that it inhibited
N deferential to the medical deference is a change for the better. The balance is now the courts exercising a restraining
S profession? about right as it is a more critical approach than simply influence…theirs is essentially a regulatory
Lord Woolf, 2001 ‘doctor knows best’. role.’
E Identifies why there was excessive deference on the
N courts’ part;
o Originally there was little controversy and
T there was a ‘presumption of beneficence’ of
the medical profession.
o Judges reluctant to second-guess the conduct
an opinion of respected professionals, as in
any field.
Case Comment: Re C Questions the courts’ approach as to which information Re C should ‘encourage future courts to take
C Kristina Stern, 1994 the patient needs to understand and to what extent, a more active role in determining the scope
O suggesting that it most likely is dependent on the
patient’s status mentally.
of lawful medical treatment’.
N Stern prefers an approach focused on the relationship
between the patient’s ability to weigh the treatment
S information and their mental disorder, using anorexia
nervosa as an example.
E Best Interests, Patient Participation Analyses the best interests standard in the context of ‘Best interests is inherently an elusive and,
N and the Mental Capacity Act 2005
M. Donnelly, 2009
healthcare decisions and focuses on the participative
elements in the MCA.
in some ways, unsatisfactory concept.’
T Highlights arguments in favour of the Act’s participative ‘The participative framework contained in
approach. the MCA is allowed to operate in a
Participative element is the requirement that the meaningful way and that it does not
person lacking capacity should participate in the become simply a rhetorical nicety.’
A process od determining their best interests.
MCA challenges the objective nature of the standard by
N introducing the beliefs and values of the person into
D Anorexia, Capacity, and the Best
the balance sheet approach.
Problematic that incapacity is almost presumed in cases ‘There is an enduring insensitivity to the
Interests: Developments in the involving an individual with anorexia. social and political context of anorexia, and
Court of Protection Since the Signals the retention of medico-legal control over the a persistence of value judgements about the
C Mental Capacity Act 2005 subject. agency of the person with anorexia.’
B. Clough, 2016 Post-MCA case law shows little development of legal
A understanding of the complexity of anorexia and its
P From ‘Doctor Knows Best’ to
impact on the abilities of those with the condition.
Despite involving in the checklist, no particular priority ‘Central problem is that the law inevitably
A Dignity: Placing Adults who lack is given to the patient’s wishes. draws a bright line between those who do,
capacity at the centre of decisions Advocates formalising current best practice in the Court and those who do not have the mental
C about their medical treatment of Protection through the introduction of a series of capacity to make decisions.’
E. Jackson, 2018 rebuttable presumptions, or starting.
I Says that the test for capacity under the MCA operates
T
as a cliff edge.
Presumptions instruct decision-maker and crucially
Y reassure P that if they are held to not have capacity, it
will not mean they have absolutely no decision-making
authority.
Gillick, 20 years on: arrested Acknowledges that the formulation in Gillick was Questions how far Re R and Re W have
development or growing pains? uncertain but asserts this is true of any assessment of ‘overturned the spirit if not the letter of
Anne Morris, 2005 competence, even in the case of an adult. Gillick’.
Gillick is important because it;
o Is a liberal decision emphasising the respect Re E ‘highlights the cost of paternalism’.
given to the wishes of the minor; and
o Drew attention to the fact that there remains
decisions which minors will not be able to
make because they cannot fully appreciate
the consequences.
Draws on Re E as an example of the clearly expressed
wishes of a mature minor being overridden in his
perceived best interests.
Analysing the effect of Gillick should take into account
that not all cases involve life-threatening intervention.
Goodbye Gillick: Identifying and Application of Gillick has revealed several ambiguities.
resolving problems with the MCA provides a definition of capacity that is
concept of child competence significantly more developed and comprehensive than
E. Cave, 2014 Gillick competence – the test is not perfect.
Embracing one concept of capacity for all, the law
would be much more coherent, consistent and
comprehendible both to those applying and those
subject to it.
Advance Directives and the Rocky Three basic criticisms of advance directives; ‘Since all decisions necessarily project into
, Waters of Anticipatory Decision- o Moral the future…the difference between a
Making o Weight given to autonomy contemporaneous and an anticipatory
MacLean, 2007 o Pragmatic implementation decision is purely one of degree rather than
Claims that the protection of autonomy is secondary to type’.
the primary goals of protecting healthcare,
professionals and the patient’s welfare.
Analyses line of caesarean case law, stating that it is
only once the baby has been delivered that the courts
will harp on about self-determination.
Bold comment that what separates the approach in Re
C is that ‘C’s life was unlikely to benefit the community’.
Asserts that the courts will assess the patient’s
competence based on the outcome of the choice they
have made, contradicting the principle that they can
refuse treatment on rational or irrational grounds.
MCA is a ‘mixed bag’ when it comes to advance
directives.
Mama Mia: Serious Shortcomings More transparency is required in the way decisions are ‘Lord Mustill in Bland felt that a decision as
in another (en)forced caesarean published to avoid inaccurate media coverage. This to best interests is as much ethical as
section case would deter women from seeking professional help. medical.’
E. Walmsley, 2014 Judgements need to show clearly how the caesarean
section is in the best interests of the patient and attach
equal importance to her best-interests post-birth
Cases need to engage with the capacity provisions and
participation principle in the MCA 2005.
Autonomy in the Medico-Legal The rule that autonomy rules absolutely is unworkable ‘The law pays loud lip service to autonomy.’
Courtroom: A Principle Fit for in practice.
Purpose If autonomy is as important as it is made out to be in
C. Foster, 2014 the courtroom, the law should be more explicit about
which account of autonomy plays a role.
In reality, trust is more important to most patients than
autonomy is.
Informed Consent and other Fairy Guidance provided by the law is both ad-hoc and post- The Sidaway approach seems to ‘stack the
I Stories hoc deck against successful claims.’
N Michael Jones, 1999 Criticises therapeutic privilege, contrasting Lord
Templeman’s views in Sidaway. Therapeutic privilege is ‘paternalistic in its
F Hard to imagine any court coming up with a detailed assumptions and its goals.’
O set of rules by way of guidance.
P.J. Dawes on Informed Consent Surgeons having to disclose too much information
R reflects either the predicted and long expected increase
M in defensive medicine or an increased awareness that
patients want to know more about their treatment.
E Giving the Reasonable Patient a Middle ground is to recognise the relevance of both the Consent should be seen ‘as both a state of
D Voice: Information Disclosure and patient’s autonomy and the ethical and legal judgment mind and an act of communication.’
the Relevance of Empirical Evidence of the doctor’s behaviour.
Alasdair MacLean, 2005 ‘Until Parliament acts, we are left with the
C task of animating the reasonable person.’
O
Are the Courts excessively The courts treating the medical professional with less ‘The problem with Bolam is that it inhibited
N deferential to the medical deference is a change for the better. The balance is now the courts exercising a restraining
S profession? about right as it is a more critical approach than simply influence…theirs is essentially a regulatory
Lord Woolf, 2001 ‘doctor knows best’. role.’
E Identifies why there was excessive deference on the
N courts’ part;
o Originally there was little controversy and
T there was a ‘presumption of beneficence’ of
the medical profession.
o Judges reluctant to second-guess the conduct
an opinion of respected professionals, as in
any field.
