In T v. T an abortion and sterilisation was authorised on a 19 year old girl with severe mental disabilities on the grounds that the doctor should be able to proceed with good medical practice if the patient was never able to give her consent. 35 Using T v. T and the Bolam test, the House of Lords allowed the sterilisation of another mentally ill woman. 36 Here the court ultimately identified ‘best interests’ by siding with medical opinion. On one hand the patient may have actually wanted a child but on the other she could not possibly care for it.
It is likely however that the patient’s carers were the ones bringing the case to court, with their ideas of what would be best interests rather than a doctor with an agenda. It could be argued that carers are more qualified to know a patient’s best interests when presented with the options. However, it could also simply have been to make the carer’s life easier by preventing such a pregnancy, or not having to deal with problems associated with menstruation. Re S37 marked a significant change.
The Court of Appeal overturned a trial judge who allowed S.to be sterilised. Medical witnesses produced a range of options with which the court decided the most fitting. Following this, to prevent each treatment of a mentally ill adult resulting in declaration, the high court issued procedures allowing treatment as a means of pain or illness alleviation. Boundary cases (extreme or irreversible procedures) should be referred to court. 38 Relieving pain or illness to comply with compulsory treatment under the Mental Health Act39 has been interpreted broadly in the high court.
Detained under the Act, one judge saw force feeding a patient as a treatment for his personality disorder; stating the wrong of allowing a patient’s rights to overrule ‘ethical values and institutional integrity’. 40 This contrasts with in B v. an NHS Hospital Trust [34] concerning the difference in values over competence. To enjoy true autonomy requires competence. The problem being that it is the medical profession who ultimately decides competence. Those detained under the Mental Health Act can be lawfully treated, but these people represent the minority of mentally ill or disabled patients.
Courts again have relinquished control of treatment of the incapacitated (and in essence their autonomy) to the medical profession, save extreme procedures. On the other hand, if such a patient cannot demonstrate capacity they could not make a truly autonomous decision from the start. Allowing the medical profession control in these cases has prevented HCW’s becoming criminals for treating such patients without consent. The major drawback of this approach has been interpretation of the law.
As we have seen, the courts have been more likely to profess autonomy in less ‘erratic’ cases such as Re C, when the outcome may not seem sensible but free will demands it to be carried out. In the distressing cases however, such as when woman and child’s life has been at stake, the courts’ ability to stand up to HCW’s seems to diminish. In Re MB and the other caesarean cases it was the ethical values and institutional integrity, as outlined in R. v. Collins and Ashworth Hospital Authority ex p.
Brady (2000), which were allowed to overrule the right of the patient. The excuse of in-capacitance has allowed the courts to make the easier decision; which is to leave the decision in the hands of the doctors. The competent and rational (or is it prudent and reasonable) patient seems to have got the better deal. The doctor has now to ensure their patient fully understands the risks of a potential procedure. In these cases however, the courts could also be accused of transferring the balance of power back to the doctors.
It is they after all who will decide the level of competence the patient is at, and in turn the amount of information to give out. Even if the information given is proven to be inadequate, the HCW can still only be held liable in negligence. The somewhat special relationship between the courts and the doctors allows such doctors liberties, and some immunity from the law, in exchange for taking the problematic cases (and their consequences) from the hands of the judges.
Allowing the doctors a somewhat free reign seems therefore to be in the courts’ rather than the patients’ best interests.
Bibliography
Books: Brazier, M. Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003) Mason, J. K. , McCall Smith, A. , & Laurie, G. T. , Law and Medical Ethics [6th Edition] (Butterworth’s, 2002) Kennedy I. & Grubb A. , Medical Law [3rd Edition] (Butterworths, 2000)