English wishes of patient’s who may have serious

English medical law seeks to protect the wishes,
feelings, beliefs and values of adults who lack capacity. Questions arising
from the area of lack of capacity are often controversial where patient’s
rights are concerned. Considering the wishes of patient’s who may have serious
cognitive issues, whilst simultaneously thinking of their best interests is a
difficult task. The law in this area seeks to preserve patient’s ‘autonomy,
non-maleficence, beneficence and justice’1,
whilst also respecting characteristics such religion. The law has been ‘devised
with commitment to achieving patient-centred care; care that honours where
possible the patient’s own reflectively endorsed values, whether or not she has
decision-making capacity’2.

With the arrival of the Medical Capacity Act (MCA) in 20053
most notably, there are now, more than ever, strong clear provisions that
protect individual rights and freedoms for those who lack capacity in the UK. Critics such as John Coggon have
argued that the best interest test is not ‘patient centred’4
enough, this could not be further from the truth.

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The law on capacity,
in the medical context, refers to the ability of a person to make a pragmatic,
sensible decision for themselves without coercion. The protections for individuals
has been created by a series of key cases, which resulted in the Medical Capacity
Act 2005 (MCA), overtaking the existing law which was ‘unsystematic
and full of glaring gaps’5. Case law started to develop in 1990s that helped
to underpin the existing laws. Firstly, in Re T6 it was
established that a decision to refuse treatment must also be made voluntarily;
that is, free from undue influence or coercion. Lord Donaldson also clarified that
more serious the decision, the greater the capacity required’7, showing how there must be
a degree of discretion used in doctor’s decision making. Re C8
is another case that laid down the foundations of law in this area. In
fact, S3(1) of the MCA codifies the criteria laid out by Thorpe J in Re C as confirmed in Re MB (Medical Treatment)9,
and details when a person is ‘unable to make a decision.’ It states, inter alia, that if a person is unable
to ‘retain’10 or
information, they lack capacity under S3. Some argue, in my view incorrectly,
that there is ‘a grey area’12 between capacity and
incapacity. In my view, S2 clearly defines those who lack capacity,
stating that ‘a person lacks capacity in relation to a matter if at the material time
he is unable to make a decision for himself in relation to the matter because
of an impairment of, or a disturbance in the functioning of, the mind or brain’13. This
definition is not too extreme, nor too complicated to understand, it can be
applied in such a way that it is clear who does lack capacity and who does not.

The law enables those who lack capacity to be quickly recognised and
subsequently treated in a manner that preserve’s patient autonomy and values.


in the medical field law protects individual’s rights and liberties through the
applications of the best interest test which is used to determine appropriate treatments
for adults who lack capacity. Within the principles of the MCA14
it states that ‘An act done, or decision made, under this Act for or on behalf
of a person who lacks capacity must be done, or made, in his best interests.’
This is expanded on in the Act15where
the Act states what ‘best interest’ can mean. Section 4A states that the
treatment must be the ‘least restrictive’16 whilst also
respecting the ‘past and present wishes and feelings’17
and ‘beliefs and values’18
of the patient. The doctor should consult the patient’s family and friends19,
this will allow them to ascertain a better understanding of the patient’s
personal views and beliefs. It is true that there may be some tension between
deciding someone’s best interests objectively whilst the patient, of sound
mind, disagrees. Therefore, pitting patient autonomy up against the doctor’s
will. However, in the case of NHS Trust v
Justice King stated that people that may ‘appear perfectly rational’21,
must still be overridden if their overall decision making capacity is limited. However,
much of the case law disagrees with this opinion. In the Supreme Court case of Aintree22,
Lady Hale stated that the benefit of the best interest approach is that it is ‘you
must look at a patient’s welfare in the ‘widest sense, not just
medical but social and psychological’. In terms of the benefits of the act, Lady Hale stated that the test
is most effective with ‘regard to patients whose values cannot be ascertained’23
whilst others believe it’s ‘focus’ on ‘wishes and beliefs’24
are its strong points. Marshall J in the case of Re S25
similarly praises the current law’s careful attention to patient rights saying
that the ‘MCA gives rise to … a presumption in favour of implementing the
individual’s wishes’26.

The best interest test is part of the UK law which effectively protects patient’s
values and wishes, despite giving doctor’s the right to treat when necessary.


There is an argument to be had whether the current
law gives too much protection to the rights of the patient. With the regulation
surrounding the doctor’s decision, some have argued that the role of the doctor’s
own judgment has diminished. Brazier for example is critical, arguing
that ‘autonomy
somehow acquired paramountcy’27
above all else and that doctors are now ‘captive helpers28.

However, doctors do
still have a degree of control, shown when using the best interest test. In the
case of Cheshire West and Chester Council
v P29,
for instance the Supreme Court found that treatment which included the patient being
placed in a body suit, was ‘normal for people like him and therefore no
deprivation’30 was
found. Gordon QC summarises this reasoning well during the case, arguing that ‘people who lack the capacity to make
(or implement) their own decisions about where to live may justifiably be
deprived of their liberty in their own best interests’31.

Gordon’s approach holds true, the doctor’s opinion must come before patient
autonomy in certain cases, even to the detriment of their personal values and


attempts to give effect to the views of the patient by using advance
decisions, meaning they can dictate their future treatment, providing they have
‘reached 18’32,  have ‘the capacity to do so’ and can propose a
‘specified treatment’33.

Advanced decisions are accessible and cheap for patients as there is no
requirement that it must be endorsed or written by a solicitor. Advanced
decisions, when properly validated34,
are abided to strictly. For instance, in the case of Nottinghamshire Healthcare NHS Trust v J35,
a Jehovah’s Witness had set the advanced decision to refuse medical treatment,
including blood transfusions due to his religion. Despite needing the
transfusion, the doctor’s abided by the patient’s advanced decision and
withheld from giving a transfusion, acknowledging that it would have been an ‘abuse
of power’36. Whilst
overall I believe advanced decisions are beneficial for the protection of patient’s
rights. I do share the scepticism that Chris Ryan suggests that patients are ‘likely
grossly to under-estimate their desire to have medical intervention’37.

However, it is more important to give the patient their right to autonomy, and
allow them to mould their decision around their core beliefs and values, such
as religion than it is to force treatment on an unwilling patient.


Other tools
used to honour patient’s will are detailed in the Lasting Power of Attorney
provisions within the MCA38.

A patient can ‘confer’39
decision making powers that ‘ensures the person you want to make decisions for
you will be able to do so’40
in areas such as ‘personal welfare’ and ‘property and affairs’41. These
provisions all enable the patient to have more involvement in the decision-making
process. This is useful when they have a degenerative disease and can put these
provisions into place before their illness takes hold of them and they lose
capacity. The MCA also provides that deputies42,
may take care of the patient and their decisions, whilst being able to be
‘reimbursed out of P’s property’43
and ‘exercise all or any specified powers’44
to do with the patient’s property. The powers of the deputies are wide
reaching, for instance in the case of M45,
Purle J decided that the deputy’s acted ‘clearly intra vires’46
when funding for the care of their son (aged 20) ‘at a special college’ was
questioned. Additionally, as recommended in the Law Commission Report 37247,
the MCA was amended to adopt the Deprivation of Liberty Safeguards (DOLS), a
provision that has grown in popularity recently (11% growth in applications in 201648).

The safeguard allows a person to be under ‘continuous supervision and control’49,
which many argue goes against Article 5 of the Human Rights Act50.

However, this supervision is necessary in many circumstances to control the financial and personal welfare
of patient’s, their interests are further protected by the Court
of Protection.


A perfect
combination of patient autonomy and effective medical intervention is hard to
find. Indeed, some even criticize the idea of total autonomy, Cave for instance arguing that the ‘dominance
of autonomy renders the MCA limited in its ability to empower individuals’51.

Instead, it is important to find a ‘balance52’
without wrapping the ‘incapacitous person in forensic cotton wool53’,
allowing the patient to be at the centre of the decision. This is the approach
I believe has been effectively laid out by current English Medical Law. The current
measures available to the patients allow them to choose their course of
treatment is the most effective way of respecting their wishes, feelings,
beliefs and values.

1 12 T.L.

Beauchamp and J. F. Childress, Principles of Biomedical ethics, 5th Ed.

(Oxford 2001)

2 Coggon, J. (2016). Mental
Capacity Law, Autonomy, and best Interests: An Argument for Conceptual and
Practical Clarity in the Court of Protection. Medical Law Review, 24(3), pp.396-414.

3 Mental
Capacity Act 2005

4 Coggon, J. (2016). Mental
Capacity Law, Autonomy, and best Interests: An Argument for Conceptual and
Practical Clarity in the Court of Protection. Medical Law Review, 24(3), pp.396-414.

5 Cave, E
(2014). Determining Capacity to Make Medical Treatment Decisions: Problems
Implementing the Mental Capacity Act 2005. Statute 2005. Statute Law Review,

6 Re T (Adult:
Refusal of Treatment) 1993 Fam 95

7 Lord
Donaldson in Re T (Adult: Refusal of Treatment) 1993 Fam 95, at page 113.

8 Re C (Adult, refusal of
treatment) 1994 1 All ER 819

9 Re MB (Adult, medical
treatment) 1997 38 BMLR 175 CA

10 Mental
Capacity Act 2005, s 3(1)(b)

11 Mental
Capacity Act 2005, s 3(1)(c)

12 Cave, E
(2014). Determining Capacity to Make Medical Treatment Decisions: Problems
Implementing the Mental Capacity Act 2005. Statute 2005. Statute Law Review,
36(1) (p2)

13 Mental Capacity Act 2005, s 2

14 Mental
Capacity Act 2005, s 1(5)

15 Mental Capacity Act 2005, s 4, s 4A

16 Mental
Capacity Act 2005, s 4(a)

17 Mental
Capacity Act 2005, s 4(6)(a)

18 Mental
Capacity Act 2005, s 4(6)(b)

19 Mental Capacity Act 2005, s 4(7)

20 NHS Trust v L & Others
2012 EWHC 2741 (COP)

21 Ibid

22 Aintree
University Hospitals NHS Foundation Trust v James 2013 UKSC 67

23 Ibid

24 Westminster
City Council v Sykes 2014 EWHC B9 (COP)

25 Re S and S (Protected Persons), C v V (2009 WTLR
315, 2008 COPLR Con Vol 1074 (Marshall J)

26 Ibid

27 Margaret
Brazier, ‘Do no harm—Do patients have responsibilities too?’ Cambridge Law
Journal (2006) 65:2, 400

28 Margaret
Brazier, ‘Do no harm—Do patients have responsibilities too?’ Cambridge Law
Journal (2006) 65:2, 420

29 Cheshire West and Chester Council v P 2014 UKSC 19,
2014 MHLO 16

30 Ibid

31 Ibid

32 Mental
Capacity Act 2005, s 24(1)

33 Mental
Capacity Act 2005, s 24(1)(a)

34 NHS
v D 2012 EWHC
885 (COP) and 2012 EWHC 886 (COP)

35 NHS Trust v
J 2014 EWCOP 2675, 2014 MHLO 58

36 Ibid (Moyston J)

37 Chris Ryan,
‘Betting your life: an argument against
certain advance directives’, J Med Ethics 1996 22: 96

38 Mental Capacity Act 2005, s 9-14

39 Mental
Capacity Act 2005, s 9(1)

Society, ‘Benefits of making an LPA’,
accessed 4/1/2018

41 Mental
Capacity Act 2005, s 9(1)(b)

42 Mental
Capacity Act 2005, s 15-21

43 Mental
Capacity Act 2005, s 19(8)(a)

44 Mental
Capacity Act 2005, s 19(8)(b)

45 M, Re Mental
Capacity Act 2005 2017 EWCOP 24

46 Ibid. s24

47 Law
Commission, Mental Capacity and Deprivation of Liberty, Law Com No 372, 2017

48 NHS, ‘Number
of Deprivation of Liberty Safeguards applications up 11 per cent’, ‘NHS Digital’,
1/11/17, accessed

49Social care
institute for excellence, ‘Deprivation of Liberty Safeguards at a glance’, ‘SCIE,
2015’ accessed 21/12/17

50 Human Rights Act 1998

51 Cave, E
(2014). Determining Capacity to Make Medical Treatment Decisions: Problems
Implementing the Mental Capacity Act 2005. Statute 2005. Statute Law Review,

52 Re A (Medical
Treatment: Male Sterilisation) 2000 1 FLR 549 (Thorpe LJ)

53 NHS Trust v P 2014 EWHC
1650 (Hedley J)