Rationality and the refusal of medical treatment: a critique of the recent approach of the English courts.

Abstract

This paper criticises the current approach of the courts to the problem ofpatients who refuse life-saving medical treatment. Recentjudicial decisions have indicated that, so long as the patient satisfies the minimal testfor capacity outlined in Gillick, the courts will not be concerned with the substantive grounds for the refusal.

The capacity to refuse psychiatric treatment: A guide to the law for clinicians and tribunal members

“…Contrary to the conclusions of some academic commentators, Commonwealth courts appear to have interpreted the boundaries of an ability to use and weigh the relevant information more widely than the boundaries of either a logical process (Appelbaum and Grisso, 1988), a rational process (Freedman, 1981), a not irrational process (Stauch, 1995) or even a reasoned process (Donnelly, 2010;O'Neill and Peisah, 2011). Instead they appear to regard a person as having failed the test if he or she is unable to use or weigh the relevant information in one of the many ways that people ordinarily process information when not affected by an impairment of, or disturbance in, the functioning of the mind or brain.…”

Mental capacity as a medicolegal prerequisite for consent or refusal of medical treatment

“…17, section 1) requires that the doctor must conduct the assessment whenever he/she has doubts about the presupposed capacity of an adult with contractual capacity who refuses medical treatment which saves or sustains his/her life. Only if a doctor determines that the refusal of treatment is the result of a rational decision -that there is harmony between his/her autonomy and his/her best interest -it can be concluded that the patient possesses mental capacity 27 . Once established mental capacity to refuse medical treatment must be reexamined in later treatment stages 28 .…”

Lessons from the Mental Health Act Commission for England and Wales: The Limitations of Legalism-Plus-Safeguards

“…Lawfully enforced medication is not always effective and it contains risks of adverse somatic and social effects for all recipients, whether or not they gain any symptomatic relief (Fisher and Greenberg, 1997; Breggin, 1993). Opponents of these criticisms in their turn point out the risk of not treating, both for patients and others, and that psychiatric diagnosis and detention offer a needed opportunity for mental health gain (Staunch, 1995; Gove, 1970).…”