An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

We are familiar with the notion of mental capacity, presumed in people of 16 years and over, set out in the Mental Capacity Act 2005. The origins of the doctrine underline its importance in clinical life.

'Capacity' as a measure of capability emerged forty years ago. A judgement involved Ms T, who did not conform with her mother’s adherence to the Jehovah’s Witness faith. The court found that mother was exerting pressure on her daughter to refuse a blood transfusion, without which she risked death from respiratory failure. It was held that '...(A)lthough an adult patient was entitled to refuse consent to treatment...for such a refusal to be effective...his capacity to decide had not been diminished by misinformation, and his will had not been over borne by another's influence'.

The context of capacity thus set out; the means to assess it soon followed.

Mr C stabbed his wife in 1962. They had been together for 13 years; she had paid for his passage to England. He was sentenced at the Old Bailey to 7 years imprisonment, but during his confinement he was diagnosed with schizophrenia, and moved from Brixton prison to Broadmoor, and treated with drugs and electro convulsive therapy. These were partly necessary because of Mr C's grandiose delusions of an international career in medicine; '...during the course of which he had never lost a patient'. Over the ensuing thirty years, he 'mellowed'.

In 1993, Mr C knocked his foot in the shower, and within 3 weeks gangrene was diagnosed. A vascular surgeon found a grossly infected leg with a necrotic ulcer covering the dorsum of the foot...and considered that death was imminent, unless an amputation was performed. The surgeon assessed C's chances of survival with conservative management at 15%, but C refused amputation. 'He would rather die with two feet than live with one'. He expressed complete confidence in his ability to survive his present trials, aided by God; ‘…and the good doctors and the good nurses. Although he recognised that he would die, death would not be caused by his foot'. At some stage he accepted the possibility of death as a consequence of retaining his limb. He did not ascribe the condition of his foot to any form of persecution by authority. But '…throughout, he expressed his rooted objection to amputation'. Despite pressure from the medical staff, C did not yield. The surgeon, to his credit, made it plain that he would not be prepared to amputate without unequivocal consent.

The surgeon negotiated with Mr C to limit the interventions to conservative surgery; and simply debrided the dead tissue, leaving a skeletalised dorsal surface of the foot. Over a six-week period skin grafting was performed, and the threat of death averted.

Mr C's solicitor requested an undertaking from the hospital that no further attempt would be made to amputate without Mr C's explicit consent, but this request was refused, and the case was taken to court.

The High Court found that the decision-making process prior to consent for treatment could be analysed as three stages: Comprehending and retaining treatment information; believing it; and weighing it in the balance to arrive at a choice. Applying this to the facts, Thorpe J was '...completely satisfied that the presumption that C has the right of self-determination has not been displaced. Although his general capacity is impaired by schizophrenia, it has not been established that he does not sufficiently understand the nature, purpose, and effects of the treatment he is refusing...he has understood and retained the relevant information, in his own way believes it ...and arrived at a clear choice. The court granted an injunction, preventing any hospital from amputating the leg without C's consent.

There is reason to believe that Mr C survived at least another 10 years, before dying of ischaemic heart disease.

Returning to the MCA 2005: Other than replacing 'belief' with the 'use' of information in the statute, the three-part test in Re C endures, when we seek to assess the incapacity or otherwise of the patient in front of us. Mr C might be pleased.

Mr Robert Wheeler
Department of clinical law