Mental Capacity The Current Common Law Position
Overview Brief history of the Courts Approach to Capacity Focus on the question of capacity to medical treatment Established principles Overview of some relevant cases Fitzpatrick v K the leading Irish case
History - I Long history of Courts making deliberations about the capacity of individuals Edward I (1275-1306) The Courts have historically exercised a parens patriae juriscdiction
History - II Parens patriae jurisdiction Literally the parent of the homeland The monarch, or any other authority, was to regarded as the legal protector of citizens unable to be protect themselves and the monarch vested that power in the Courts Has some roots in pre-independence legislation, but it has been held by the Supreme Court that this role of the Courts survived the creation of the State - In Re a Ward of Court [1996]
History - III Dealing with capacity for medical treatment is a relatively new aspect of parens patriae: Wills Ability to make contracts Wardship Over the hundreds of years a number of principles have evolved Treatment decisions are a 20 th Century phenomenon Related to the evolution of medicine?
I Presumption of Capacity The notion that capacity is to be presumed is an element of long standing: Reason, being the common gift to man, raises the general presumption that every man is in a state of sanity, and that insanity ought to be proved; and in favour of liberty and of that dominion which, by the law of nature, men are entitled to exercise over their own persons and properties, it is a presumption of the law of England, that every person, who has attained the age of discretion, is of sound mind until the contrary is proven Medical evidence important in displacing the presumption -Shelford (1833)
I Presumption of Capacity There are some circumstances where the presumption of capacity in relation to medical treatment may be more or less displaced: Admission to Wardship Treatment under the Mental Health Act May not be an absolute displacement Donnelly (2007): Failure to apply a separate test for consent to medical treatment could result in an undermining of the ward s rights to autonomy and privacy arising under the Constitution and under the ECHR.
II Functional Approach The question of how to approach capacity has changed greatly Historically a status approach During the 19 th century there was an increasing emphasis on a functional approach does the person have the capacity to execute the task in question: Banks v. Goodfellow (1870) making a will Jenkins v. Morris (1880) executing a lease
II Functional Approach With the evolution of medicine and the need to take decisions, the same approach came to be taken to medical decisions. Backed up European Human Rights law: Winterwerp v. Netherlands English Law Commission noted that almost all patients had at least some capacity to make at least some decisions: most people, unless in a coma, are able to make at least some decisions for themselves and may have levels of capacity that vary from week to week or even from hour to hour.
Case Law - I Re A Ward of Court (1997) Important aspects of the case: 1. Acknowledged the scope of the person with capacity to decide for himself: recognised rights of privacy, self-determination and bodily integrity 2. Where capacity is totally absent, the right to life could encompass the right to a peaceful and dignified death. 3. Such a death could be in the person s best interests : i. Essentially a medical decision ii. iii. Standpoint of a good and loving parent Wishes of family relevant but not determinative
Case Law - II JM v St Vincent s Hospital (2003) Jehovah s Witness refusing blood transfusion Applied Re Ward of Court Court was not satisfied: That the decision was final The decision was clear Directed the transfusion
Case Law - III Fitzpatrick v FK (2008) Background Initial application to High Court Whether understood seriousness of her situation? Communication difficulties 37-day hearing before Laffoy J Laffoy J reviewed the relevant (largely English) law and set out the Irish position. Three essential ingredients
Case Law FK Decision There is a presumption that an adult patient has the capacity, that is to say that cognitive ability, to make a decision to refuse medical treatment. But that presumption can be rebutted. Lack of capacity can be permanent or temporary Essential questions: What is the legal test for capacity? What elements are to be assessed to see if legal test is satisfied?
Case Law FK Decision The test: Whether the patient's cognitive ability has been impaired to the extent that he or she does not sufficiently understand the nature, purpose and effect of the proffered treatment and the consequences of accepting or rejecting it in the context of the choices available (including any alternative treatment) at the time the decision is made.
Case Law FK Decision 3-stage approach to test (relying on English case of Re C): The patient's cognitive ability will have been impaired to the extent that he or she is incapable of making the decision to refuse the proffered treatment if the patient- i. has not comprehended and retained the treatment information and, in particular, has not assimilated the information as to the consequences likely to ensue from not accepting the treatment, ii. iii. has not believed the treatment information and, in particular, if it is the case that not accepting the treatment is likely to result in the patient's death, has not believed that outcome is likely, and has not weighed the treatment information, in particular, the alternative choices and the likely outcomes, in the balance in arriving at the decision.
Case Law FK Decision The information on which the patient should be asked to base the decision is information as to what is the appropriate treatment what treatment is medically indicated, at the time of the decision and the risks and consequences likely to flow from the choices available to the patient in making the decision. Must distinguish between: i. misunderstanding or misperception of the treatment information in the decision-making process (which may sometimes be referred to colloquially as irrationality), and ii. an irrational decision or a decision made for irrational reasons.
Case Law FK Decision Capacity assessment must have regard to the gravity of the decision, in terms of the consequences which are likely to ensue from the acceptance or rejection of the proffered treatment. In effect, the more important the decision, the more capacity is required. Test has no regard for the complexity of the decision Court ultimately included for a range of reasons that FK lacked the capacity to refuse a blood transfusion.
FK Practical Outcome One aspect of FK was a challenge to the manner in which the initial transfusion order had been granted: fundamentally defective FK not told the application was being made As a consequence she was not represented She was not told that the transfusion order included leave for FK herself to apply to the Court until after the transfusion was amended. Court accepted evidence from the hospital that these omissions were oversights in the FK case. However, laid out a roadmap for future cases
Legal approach to be taken Starting points were: English case of St George s Healthcare and NHS Trust v S: ex parte treatment order Donnelly, Assessing Legal Capacity (2007) Ideally (may not always be possible): Independent psychiatric or psychological evidence Expert must understand the test s/he is supposed to apply Patient on notice of application and given time if necessary and possible Patient represented
Considerations for the expert Examining expert needs to be cautious about three possible evidential problems (Grisso, 2002): Must know the relevant law or run the risk of providing irrelevant testimony Job is to facilitate the Court in making its decision and not to win the argument Must have the relevant clinical/research evidence to back up conclusions: Examiners sometimes may not obtain sufficient information about the examinee in order to reach certain conclusions credibly. In other instances, adequate data regarding the examinee may be available, but the interpretative meanings of the cannot be supported credibly by past research in psychiatry and psychology.