Competence by consequence: Ambiguity and incoherence in the law

Medicine and Law

Volumn 25, Issue 1, 2006, Pages 1-12

  Parker, M ^a  

^a UNIVERSITY OF QUEENSLAND   (Australia)

Author keywords

Autonomy; Capacity; Competence; Paternalism; Refusal of treatment; Risk; Values

Indexed keywords

AMBIGUITY; ARTICLE; HUMAN; LEGAL COMPETENCE; MEDICAL ETHICS; MEDICAL PRACTICE; PATERNALISM; PATIENT AUTONOMY; PATIENT DECISION MAKING; PHYSICIAN; PROFESSIONAL COMPETENCE; PROFESSIONAL STANDARD; RISK ASSESSMENT; TREATMENT REFUSAL;

EID: 33645825627     PISSN: 07231393     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (26)

1. For example, Queensland's Mental Health Act 2000 (Qld), s 8(b) requires that "to the greatest extent practicable, a person is to be encouraged to take part in making decisions affecting the person's life, especially decisions about treatment; to the greatest extent practicable, in making a decision about a person, the person's views and the effect on his or her family or carers are to be taken into account; a person is presumed to have capacity to make decisions about the person's assessment, treatment and choosing of an allied person". Queensland's Powers of Attorney Act 1998 (Qld) states "An adult is presumed to have capacity for a matter" (Schedule 1, S1).
2. "Prima Facie every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death." Re C (Refusal of Medical Treatment) (1994) 1 FLR, at 35,
3. per Thorpe J. "Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted". Re MB (Medical Treatment) [1997] 2 FLR 426, at 436, per Butler-Sloss LJ.
4. "Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted". Re MB (Medical Treatment) [1997] 2 FLR 426, at 436, per Butler-Sloss LJ.
5. For example, in both the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld), capacity is defined as existing when the person is capable of (a) understanding the nature and effect of decisions about a matter; and (b) freely and voluntarily making the decisions about the matter; and (c) communicating the decision in some way. (Powers of Attorney Act 1998 (Qld), Schedule 3. Guardianship and Administration Act 2000 (Qld), Schedule 4).
6. For example, the 1982 US Presidential Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioural Research defined the core elements of competency as the possession of a set of values and goals, the ability to communicate and understand information, and the ability to reason and deliberate. More recently, Butler-Sloss LJ, in Re MB (Medical Treatment) [1997] 2 FLR 426, at 437, said "A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or refuse treatment. That inability to make a decision will occur when: (a) the person is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question; (b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at a decision".
7. Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871, per Lord Templeman.
8. Re T (Adult: refusal of treatment) [1993] Fam. 95, at 113, per Lord Donaldson.
9. Re T (Adult: refusal of treatment) [1993] Fam. 95, at 116, per Butler-Sloss LJ.
10. Stauch, M., 1997. Court-authorised Caesareans and the principle of patient autonomy. Nottingham Law Journal 6:74.
11. Re T (Adult: Refusal of Treatment) [1993] Fam. 95, at 113, per Lord Donaldson.
12. Stewart C. and Biegler P., 2004. A primer on the law of competence to refuse medical treatment. Australian Law Review 78: 325-342.
13. Re T (Adult: Refusal of Treatment) [1993] Fam. 95, at 115-116, per Lord Donaldson.
14. Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam), at [100] (v), per Butler-Sloss P.
15. Strang, D., D.W. Molloy and C. Harrison, 1998. Capacity to Choose Place of Residence: Autonomy vs Beneficence? Journal of Palliative Care 14: 25-26.
16. Tunzi, M., 2001. Can the Patient Decide? Evaluating Patient Capacity in Practice. American Family Physician 64: 299-302.
17. Youngner, S., 2000. Bureaucratizing Suicide. Psychology, Public Policy and Law 6:402.
18. Werth J.L., 2000. Requests for Physician-Assisted Death: Guidelines for Assessing Mental Capacity and Impaired Judgment. Psychology, Public Policy and Law 6:348.
19. Keks N., V. Howe, K. Foister, K. Jenkins and D. Coplov, 2003. How can valid informed consent be obtained from a psychotic patient for research into psychosis? Three perspectives: II. Monash Bioethics Review 22: 60-66.
20. Howe, V., K. Foister, K. Jenkins, N. Keks, L. Skene and D. Copolov, 2003. Competence to Give Informed Consent to Research Participation in Persons with Schizophrenia and Related Psychosis. Psychiatry, Psychology and Law 10: 85-89.
21. Wicclair, M.R., 1991. Patient Decision-Making Capacity and Risk. Bioethics 5:91-104. Related Psychosis. Psychiatry, Psychology and Law 10: 85-89.
22. Cale, G., 1999. Continuing the Debate Over Risk-Related Standards of Competence. Bioethics 13:131.
23. Checkland, D., 2001. On Risk and Decisional Capacity. Journal of Medicine and Philosophy 26:35.
24. DeMarco, J.P., 2002. Competence and Paternalism. Bioethics 16: 231-245.
25. Cox White, B., 1994. Competence to Consent. Georgetown University Press, Washington.
26. Re MB (Medical Treatment) [1997] 2 FLR, at [100], per Butler-Sloss P.