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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.