Consultation Paper on Bioethics - Law Reform Commission

(3) Assessing capacity
(a) England and Wales
(i) Common law
3.20 An example of assessing competence in the case of a patient‟s
refusal to consent to treatment and to “project that forward to any anticipated
intervention” 37 occurred in Re C. 38 In this case, a 68-year old man with chronic
paranoid schizophrenia developed gangrene in his leg, but refused amputation
despite the hospital‟s assessment that he would die immediately if the operation
was delayed. He sought an injunction to prevent the hospital from amputating
his leg in the future. Thorpe J was prepared to find him competent and granted
the injunction, even though C suffered from the delusion that he was a world
famous doctor who had never lost a patient. In determining capacity, he devised
a three-stage approach: was the patient able to first, comprehend and retain the
information; second, believe it; and third, weigh the information so as to arrive at
a choice? 39 Although C‟s general capacity to make a decision had been
impaired by schizophrenia, he had understood and retained the relevant
information, believed it and had arrived at a clear choice.
3.21 A difference in values should not in itself lead to a finding of
incapacity. In Re B, 40 a tetraplegic patient was being kept alive by a ventilator
and her physicians felt unable to comply with her request to switch it off. Butler-
Sloss P was careful to distinguish between autonomy and mental capacity. She
stated:
“If there are difficulties in deciding whether the patient has sufficient
mental capacity, particularly if the refusal may have grave
consequences for the patient, it is most important that those
considering the issue should not confuse the question of mental
capacity with the nature of the decision made by the patient,
however, grave the consequences. The view of the patient may
reflect a difference in values rather than an absence of competence
37 Morgan “Odysseus and the Binding Directive: Only a Cautionary Tale?” (1994) 14
Legal Studies 411 at 427.
38 [1994] 1 All ER 819.
39 Ibid at 824.
40 [2002] 2 All ER 449. See also Morgan and Veitch “Being Ms B: B, Autonomy and
the Nature of Legal Regulation” (2004) 26 Sydney Law Review 107 who argue
that there are a number of problems associated with this legal attempt to
distinguish between mental capacity and autonomy.
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