Putting the Law in Context of Mental Capacity Conundrums

Putting the Law in Context of Mental Capacity Conundrums Speaker: Prof. Keene Date: 29 January 2024 The Starting Point - Re T (Adult: Refusal of Treatment) [1993] Fam • An adult patient who...suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered... This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non- existent. Capacity And Consent: The Three Questions From An MCA 2005 Perspective - Three questions in this order A Local Authority v JB [2021] UKSC 52 • (1) Is the person able to make a decision? If not: • (2) Is there an impairment or disturbance in the functioning of the person's mind or brain? If so: • (3) Is the person's inability to make the decision because of the identified impairment or disturbance?  How far does this extend? An NHS Trust v ST & Anor [2023] EWCOP 40 Is Consent Enough? - Is capacious, informed and settled enough? - What happens if someone refuses to give any reasons at all for their decision? - And see APM guidance on ventilator removal at the request of patients with MND: doctor should record that • The alternative approaches are known and rejected by the patient • The patient knows they will die as a consequence of withdrawal • There is no coercion, nor is the decision driven by mistaken kindness to the family • [is] a settled view of the patient Where Capacitors Consent Is Insufficient - JJ, R (On the Application Of) v Spectrum Community Health [2023] EWCA • The common law authorities so far considered therefore establish (i) that a patient with capacity can choose between various treatment options, which choices have to be respected by the clinicians even if the treatment chosen is not the one that was recommended by the treating team and (ii) a patient with capacity can refuse medical treatment. That then leaves the question as to whether, as advocated by Ms. Weereratne, there is a common law right of autonomy which allows a patient to demand, and obliges a clinician to provide, medical treatment that is not offered to that patient by their doctors. Capacity In The Bedroom - A Local Authority v JB [2020] EWCA Civ 735; A Local Authority v JB [2021] UKSC • 93. The analysis of capacity with regard to sexual relations in the case law has hitherto been framed almost exclusively in terms of the capacity to consent to sexual relations. But as this case illustrates, giving consent to sexual relations is only part of the decision-making process. The fundamental decision is whether to engage in sexual relations. • 94. [...] The word "consent" implies agreeing to sexual relations proposed by someone else. But in the present case, it is JB who wishes to initiate sexual relations with women. The capacity in issue in the present case is therefore JB's capacity to decide to engage in sexual relations. In my judgment, this is how the question of capacity with regard to sexual relations should normally be assessed in most cases. • 95. When the "decision" is expressed in those terms, it becomes clear that the "information relevant to the decision" inevitably includes the fact that any person with whom P engages in sexual activity must be able to consent to such activity and does in fact consent to it. Sexual relations between human beings are mutually consensual. It is one of the many features that makes us unique. A person who does not understand that sexual relations must only take place when, and only for as long as, the other person is consenting is unable to understand a fundamental part of the information relevant to the decision whether or not to engage in such relations. Capacity And The Convention On The Rights Of Persons With Disabilities - What implications flow from the CRPD? In particular from article 12: • Equal recognition before the law  1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.  2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.  3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. General Comment - Mental capacity is not "as commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity." - Functional model is flawed because "it presumes to be able to accurately assess the innerworkings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right - the right to equal recognition before the law." - => functional model of capacity = discrimination contrary to Article 12 CRPD - An alternative take: "with appropriate safeguards, and a rights emphasis, there is no 'discriminatory denial of legal capacity' necessarily inherent in a functional test [of decision-making capacity,]-provided the emphasis is placed principally on the support necessary for decision-making and that any appointment [of a decision-maker] is for the purpose of protecting the person's human rights" - Australian Law Reform Commission