Free Law Essays - Proxy Decision Making
Where an individual is suffering from mental disorder or mental incapacity, others may sometimes have the right to take decisions for them, but this should always depend upon there being a proper legal justification: it should not happen simply because others think that they know best
Evaluate critically the current mechanisms and provisions and the proposals for reform in respect of proxy decision-making on behalf of incapacitated adults.
In the UK, there is a mistaken belief, that close relatives and loved ones are entitled to make decisions regarding medical treatment on behalf of those unable to make such decisions for themselves. Proxy decision-making on behalf of adults over the age of 18 does not exist in England and Wales. Good practice will always encourage a health care team to discuss a proposed course of action with the patients’ family. However, they have no right to decide which decisions are to be made for him or her. With this in mind, this paper will turn to examine the law relating to both mentally incapacitated individuals and patients suffering from mental disorders, and how it has developed and now applies. It should be noted that the law relating to mental health, and the law relating to incapacity, despite certain overlaps, are two quite different and distinct areas of law.
It is an accepted fact, that capable individuals have an absolute right to decide what should or should not happen to their own body. Donaldson MR, in Re T comments:
“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.”
This approach has received considerable support through case law. The reason for such is that any unlawful contact with another person’s body may constitute the crime and tort of battery. A battery is committed where there is an application of unlawful physical contact upon another person. In certain cases, a valid consent will negate such action. Where a patient gives consent to treatment, this is one such instance. Consent does not always equate with lawful contact, but for the medical profession, it will normally be sufficient.
Inevitably, where a person’s choice of conduct brings into consideration the conflict of autonomy versus sanctity of life, policy will always lean in favour of the preservation of life. Such sentiment is echoed in the judgment of Dame Butler-Sloss in Re B. However, individual autonomy of competent adults outweighs such principle, as Lord Keith stated in Airedale NHS Trust v Bland:
`Even when [the patient’s] own life depends on receiving medical treatment an adult of sound mind is entitled to refuse it. This reflects the autonomy of each individual and the right of self-determination'.
In general, the capacity of an adult is not normally questioned. Thus, there is a presumption of capacity and therefore, consent is nearly always required. In practice, it could be argued that a doctor will only question the capacity of patient, where he is in disagreement with the patient’s choice. The case of Re C established that a patient lacks capacity if he is unable to; (i) understand information relating to the proposed treatment; (ii) retain such information; and (iii) weigh up the information in order to arrive at a decision. Even where a patient may lack the ability to make decisions relating to his own psychiatric treatment, he may possess capacity to make decisions in relation to matters that are not related to such issues, as exemplified in the Re C case itself. Thus, mental illness does not automatically equate with the inability to make decisions for medical treatment that is not related to the mental condition.
Re S (Adult: Surgical Treatment) involved the refusal of a patient to undergo caesarean section because of religious beliefs. Her refusal was overridden in favour of preserving the life of the foetus. Thus, there was an overriding of consent. Policy considerations have side stepped in light of strong arguments in favour of individual autonomy. Thus, the principle of competence can be used as a tool for saying that a patient is not capable of giving consent, as opposed to blatantly overriding individual autonomy. In Re MB, a pregnant lady who went into labour refused to give consent for the doctors to perform a caesarean section because of her fear of needles. The doctors questioned the woman’s capacity and it was held that her fear of needles had temporarily reduced her capacity to make a decision regarding a caesarean section. It could be questioned whether such treatment was enforced upon the patient because it was legally justified, or whether capacity was overridden in order for the medical team to treat the patient in what they thought was best. The legal justification was that the patient lacked capacity, but her capabilities to decide where only called into question because of the fact the doctors did not agree with her decision!
In the absence of a valid consent (where the patient is unable to give consent either because of temporary or permanent incapacity), the law has held that a doctor can treat a patient in his or her best interests under the doctrine of necessity. This was decided in Re F, in which the court was asked to declare whether it was lawful for a medical team to give a sterilisation for non-therapeutic purposes to a patient who lacked long-term capacity. Despite the sensitive nature of the case, the court merely recommended that medical teams sought approval for the legality of treatment in future cases. Thus, there is potential for major decision making on behalf of incapacitated adults solely on the basis of the medical team concluding that they feel such treatment is in the patient’s best interests. It is submitted that cases of such sensitive nature should always seek approval of the court. The same principle applied with respect to withdrawal of life sustaining treatment in the case of Airedale NHS Trust v Bland, in which it is arguable, that the only reason that feeding by naso-gastric tube was regarded as ‘medical treatment’ was so that the team could withdraw such ‘treatment’. They were only able to treat Antony in his best interests and in their opinion, it was not in his best interests to carry on with ‘treatment’ and were therefore, not legally entitled to carry on feeding him as to do so would constitute a battery under the principles in Re F.
The best interests test is also considerably superficial. Thus, a doctor can judge what is in the patient’s best interests in accordance with accepted medical practice, or more commonly referred to as the ‘Bolam’ test. The Bolam test holds that a doctor is not negligent if he acts in accordance with a practice accepted as proper by a responsible body of medical opinion. In short, a doctor who acts in accordance with a minority view, even if it is opposed by a majority, and has not acted outside of medical practice because his conduct is still within the realms of ‘accepted’ medical practice. Such approach has been the subject of scathing academic opinion. No other professional practice is afforded the same protection. In essence the law sets the duty of care, but the standard of such care is left to the medical profession. This is clearly a controversial approach. Despite the fact that the case of Bolitho v City & Hackney Area Health Authority has enabled the judiciary to call into question the approach of the medical profession where it is not capable of withstanding logical analysis, it is questionable whether such decision has had any real impact on the approach of the strict interpretation of the Bolam test.
The best interests test requires an analysis of not only medical factors, but also social, personal, emotional and other factors. This is an extremely important decision to be placed in the hands of the doctor. Whilst good practice will dictate that the doctor should do all he can to find out what will be in the best interests of his patient, by making enquiries, discussing options with his family and discussing with close family and friends the views held by the patient prior to losing capacity to decide, he is under no duty to do so as long as he is of the opinion that his conduct is in accordance with accepted medical practice. The Law Commission criticised the use of the Bolam test in this context, stating in their report, that it ‘… should be made clear beyond any shadow of a doubt that acting in a person’s best interests amounts to more than not treating a person in a negligent manner’.
The approach of the courts in the USA is that the patient is treated according to a substituted judgment test. The court attempts to ascertain what the patient himself, had he been able to decide for himself, would have desired in the circumstances. Where a patient is previously capable, his known preferences and as Brazier comments, ‘even his idiosyncrasies, the views that he has expressed to family and friends of what he would hope for were he ever to be severely disabled, are useful and crucial factors on which to base treatment decisions.’ The substituted judgment test however can never be applied to a person who has never possessed capacity and the only option in such circumstances is to treat in what the medical team (and family) consider to be in the patient’s best interests.
At the start of this paper, it was recognised that there are in fact situations where those suffering from mental disorders are not capable of making their own decisions with regards to the psychiatric disorder for which they are suffering, or even if they are, they may not be permitted to exercise personal autonomy because they are a danger to themselves or to others. Even though there is room for argument that the law should not aim to override the personal autonomy of individuals where they are only a threat to themselves (and not to others), this is something that does not need further discussion at this point.
The Mental Health Act 1983 is a fundamental piece of legislation, as it has the potential to take away the liberty of individuals suffering from a mental disorder, where they are a threat to themselves or to others. Furthermore, patients sectioned under the Act can be treated against their wishes. The main distinction between the Mental Health Act 1983, and the common law relating to the treatment of the incapable under the doctrine of necessity, is that the Mental Health legislation contains a number of safeguards in order to protect the patient.
In order for an individual to be sectioned under the 1983 Act, two doctors must approve the detention (except in emergency cases). An initial period of 28 days under section 2 can be used for both assessing and treating the patient. Under section 3, the patient can be sectioned for a period of 6 months, which can be renewed. For some conditions, the proposed treatment must alleviate the patient’s condition (the so-called ‘treatability’ requirement).
The legislation also contains extensive safeguards relating to the discharge of detained patients; the nearest relative can apply to have the patient discharged, and there are provisions for the patient to request tribunal hearings in order to be discharged from his or her section. Further safeguards under Part IV of the 1983 Act ensure that the patient’s treatment is monitored. Under section 57, the patient cannot be the subject of psychosurgery, or surgical implantation of hormones in order to remove sexual drive, unless both the patient and a second opinion approved doctor (SOAD) certify the treatment. Section 58 requires the patient or a SOAD to certify any treatment over a period of three months, or for Electro-Convulsive Therapy (ECT). It is both inconsistent and illogical that a doctor can perform a sterilisation for non-therapeutic purposes upon a patient under common law (although he is advised to seek the court’s approval) against that patient’s wishes. Yet he is unable to surgically implant hormones in order to reduce sex drive under Part IV of the 1983 Act upon a patient sectioned under the Mental Health Act.
A further issue relating to the current Mental Health legislation, is how the courts have interpreted the law relating to informal patients in the case of R v Bournewood Community and Mental Health Trust, ex parte L. Section 131 provides that a patient can either enter a hospital for treatment on an informal basis, or remain in hospital on an informal basis once authority for his original detention has come to an end.
In Bornewood it was held that patients who are admitted under this section without the formalities necessary for detention under the act fall into two categories; those who have the capacity to consent to the admission and, in fact, do consent (voluntary patients) and those who, although lacking the capacity to consent to admission, do not object (informal patients). A compliant incapacitated patient (i.e. an informal patient) can be admitted under s. 131 where the requirements of the principle of necessity are satisfied.
In absence of lawful authority (either detention under the MHA, or applying the doctrine of necessity), the tort of false imprisonment or battery would be committed. Lord Steyn commented on the concern of relying on the doctrine of necessity:
“The common law principle of necessity is a useful concept, but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of the hospital psychiatrist. It is of course true that such professionals owe a duty of care to patients and that they will invariably act in what they consider to be the best interests of the patient. But neither habeas corpus or judicial review are sufficient safeguards against misjudgments and professional lapses in the case of compliant incapacitated patients.”
Bartlett and Sandland argue that should the necessity doctrine hold sway, then it would be up to individual clinicians whether to use the common law or the statutory power of detention and that such a discretion should not be allowed as the statutory powers brings a ‘set of rules and procedures’ into play. Such procedures ensure that safeguards are implemented which impose strict criteria for detention in determining the particular mental illness in question, ‘rights to have the admission reviewed by an independent tribunal, the review of the admission by hospital managers, and requirements of second opinions to be provided for treatment to continue beyond three months.’
The European Court of Human Rights has commented on L’s right to liberty under Article 5 of the Convention concluding that L had been deprived of his liberty and therefore his right to liberty under Article 5 had been breached. In deciding the breach, the Court took into account the domestic development of the doctrine of necessity and the fact that it was still under development at the time of L’s detention. The common law doctrine, in the court’s opinion was not an appropriate form of detaining mentally ill patient’s given the provision of a significant set of safeguards contained in the Mental Health Act 1983.
From 1989 to 1995 the Law Commission conducted an in-depth analysis of the law relating to decision-making and mentally incapacitated adults. Despite later endorsement of most of the Law Commission’s proposals, legislation has only just been passed. The Mental Capacity Act 2005 is the end product of much of the work of the Law Commission.
The definition contained in the new Act of the threshold for mental capacity differs little from the common law. Under section 3(1), the statute simply reiterates the test laid down in Re C and adds that an adult lacks capacity where he is unable to communicate his decision. The Act also reinforces the presumption of capacity under section 1(2) and thus, the burden to prove that a patient lacks capacity would be upon the doctor, if for example, he was in disagreement with the patient’s choice. Under section 1(4), the new Act echoes the sentiment of Donaldson MR in Re T, that a person does not lack capacity merely because he or she makes an unwise decision.
The statute has applied the necessity principle formulated in the case of Re F, so that an adult lacking capacity can be treated in his or her best interests. Under section 4(2) the decision maker will need to consider whether the adult previously possessed capacity and whether he is likely to regain the capacity to make decisions in the future. Thus, the situation where a patient is injured and is merely unconscious will mean that the medical team can only treat him for his immediate injuries. Any treatment that is not urgent must not be performed until the patient regains decision-making capacity. In relation to the best interests test, the statue gives specific guidance. The ‘substituted judgment’ test forms no part of the new Act by direct reference. The wording is clear; the patient is to be treated in his ‘best interests’. Under section 4(6) there are a number of factors that the healthcare team should take into consideration including the past and present wishes of the patient if he were conscious (if known), the patient’s beliefs and values and should discuss the proposed course of action with anyone engaged in caring for the patient or who may have an interest in his welfare. This would surely cover family and loved ones.
The Mental Capacity Act 2005 differs very little in the approach that is currently taken under the common law. Even though it has affirmed the best interests test, the guidelines set out lean towards a ‘substituted judgment’ test that was discussed above. Thus, the questions arising in the ‘substituted judgment’ test form an integral part of the best interests. In theory, the medical team will have to take all of these factors into consideration and essentially, the patient will receive treatment that is not only in his or her best interests, but also in line with his or her own views and beliefs. It could be argued that the former implies the latter. However, in some instances it is more probable that the doctor will act in a way that he considers to be in the patient’s best interests. Further, in cases where it is not possible to gain such information, as in the situation in the Re F case, the matter will rest solely on the opinion of the doctor making the decision in what he considers to be the best interests of the patient. This is far from satisfactory, especially in circumstances where incapacitated adults are being sterilised for non-therapeutic purposes.
A welcomed approach of the new Act is that of the introduction for a Lasting Power of Attorney, who is able to make decisions regarding the patient’s welfare (and property issues) where the patient has lost the capability to decide such issues. Individuals are now able to nominate an individual, whom they most probably trust to be able to make decisions for themselves in the future if they were to lose capacity to decide such issues. Such nominations allow patient decisions to be made by individuals who know the patient and who are probably highly trusted to make decisions that are truly in the patient’s best interests.
In conclusion, the common law has enabled doctors to treat incapable patients under the doctrine of consent, and therefore within the boundaries of the law. This has enabled legal justification for treatment. However, legal justification alone is not sufficient, as the common law enabled far too much discretion on the part of the doctor. The new legislation has done little but codify the common law principles with some ‘added extras’ and is therefore somewhat disappointing. More emphasis should have been placed on the integral ‘substituted judgment’ test of the best interests doctrine. This would ensure treatment is truly in the best interests of individuals unable to make such decisions for themselves and not merely in line with what the doctor at the time feels is best.
Bibliography
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Bellhouse, J., Holland, A., Clare, I.C.H., Gunn, M.J., and Watson, P., “Capacity-based mental health legislation and its impact on clinical practice: 1) admission to hospital” (2003) Journal of Mental Health Law 9 - 23
Bellhouse, J., Holland, A., Clare, I.C.H., Gunn, M.J., and Watson, P., “Capacity-based mental health legislation and its impact on clinical practice: 1) treatment in hospital” (2003) Journal of Mental Health Law 24 - 37
Gunn, M.J., et al, “The meaning of incapacity” (1994) 2 Med LR 8
Gunn, M.J., et al, “Decision-making capacity” (1999) 7 Med LR 269
Jones, M.A., & Keywood, K., “Assessing the patient’s Competence to Consent to Medical Treatment” (1996) 2 Medical Law International 107
Law Commission, Mental Incapacity (Law Com 213, 1995)
