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 20th 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…

-Shelford (1833)

Medical evidence important in displacing the presumption

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 19th 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. Standpoint of a good and loving parent

iii. 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. 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

iii. 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.