Review
Common-law principles in consent for patients in oral and maxillofacial surgery who lack mental capacity: do we know them all?

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Abstract

Over the last 5 years, the medical profession has relied on the Bolam test for their defence in cases of clinical negligence. While still a matter of controversy between health professionals and legal experts, the Bolam test has been tried and criticised not only by the English courts but also in the United States, Canada, and Australia. In the medical profession the concept of the law of consent has moved away from a doctrine of professional paternalism towards patient-focused paternalism, and has increased the emphasis on human rights and the autonomy and choice of the patient. These changes present a challenge to health professionals, and a lack of effective recognition and interpretation can result in non-compliance. We review the developments in the law of consent since Bolam and discuss how they affect patients with incapacity, and highlight the importance of being familiar with them.

Introduction

In the past, patients did not have autonomy-based rights, and under the Hippocratic Oath it was assumed that doctors would decide on the best treatment. However, during the 20th century, the Hippocratic principle was replaced by the approach that patients themselves should decide on their treatment, placing an emphasis on autonomy, which was further reinforced by the Human Rights Act 1998.

The concept of consent is controversial and can be interpreted in various ways depending on context. Consent transforms a morally or legally impermissible act into a permissible one, and the courts have drawn a distinction between the informational requirements of consent in battery law and the additional obligations for disclosure in negligence law. Consent is therefore required to avoid liability in battery, but is not sufficient to avoid liability in negligence.1

Section snippets

Development of the Law of Consent beyond Bolam

Beauchamp and Childress analysed the concept of informed consent and suggested two distinct outlooks.2 The first indicated an individual's authorisation of a medical intervention, and the second was concerned with institutionally or legally effective consent in terms of the social rules of consent.2 The patient's right to consent was first discussed in 1767 in Slater v Baker and Stapleton, and the court reasoned that the patient had a right to information that was relevant to the proposed

Development of law of consent for patients who lack mental capacity

Before the Mental Health Law 1983, De Prerogativa Regis, an act passed in 1324, and the first statutory law on guardianship for the mentally disordered, gave the King jurisdiction over the freedom and property of mentally disordered people.11 Since then, 35 Acts of Parliament have added to services specific to such patients, and these statutes were precursors of the Mental Health Act 1983, which subjected patients to a statutory jurisdiction.

Among them, the Lunacy Act 1890 has been perceived as

Statutory test of best interest

The relevance of presumption of capacity is different under the Mental Capacity Act. Before, if a person had the capacity, their consent was presumed valid, but if a person had no capacity, treatment would still be legal if it was in the patient's best interest (based on the principle of necessity in F vs West Berkshire).15 Under the Act, the subjective views of the patient must be considered when their best interest is decided, thereby reflecting the influence of a substitute judgement model

Statutory test of capacity

The Act sets out a single test to assess capacity to make a particular decision. It is based on the decision and is for a specific duration; it is not confined to age, condition, appearance or behaviour, and provides a single new definition of “mental disorder” rather than distinguishing between different types. The functional test of capacity, also preferred by the English law has been retained in the Mental Capacity Act and involves 3 stages:

  • 1.

    Can the patient understand and retain treatment

Conclusion

There is a trend for the courts to scrutinise expert evidence more closely, and the Bolitho caveat has spurred this on. Under the Mental Capacity Act 2005, there are few radical changes to the legal principle, but the test of capacity and best interest continues to be the benchmark against which lawful treatment of a patient who lacks capacity to make decisions is judged. The Act is an attempt to ensure a careful balance between patient autonomy and objective best interest, and has remained

Conflict of interest

We have no conflicts of interest.

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