Capacity and Patient Autonomy in Refusal of Treatment Cases: Paving the Way For A New Test?

AuthorCharlie Welman
PositionUniversity of Southampton
S.S.L.R Capacity and Autonomy in Refusal of Treatment Cases Vol.7
Capacity and Patient Autonomy in Refusal of Treatment
Cases: Paving the Way for a New Test?
Charlie Welman
University of Southampton
atient autonomy and the extent to which courts should allow the refusal of
treatment in cases of anorexic patients presents a dilemma: on the one hand, if,
the Mental Capacity Act 2005 (MCA) is applied to anorexic patients the perception of
their capacity is questioned, leading to the potential for their autonomy to be overruled.
On the other hand, if an anorexic patient is deemed capable, the law cannot ensure she
is protected against the consequences of her own vulnerability, no matter how
irrational the reason for her refusal of treatment may be perceived.300
Per section 4 of the MCA, it is only in the case of patients who are perceived by medical
practitioners or the courts to lack capacity that the law can make decisions for them,
such decisions ought to be in their best interests. 301 Section 4 confirms that in
determining what is in a person’s best interests,
‘the person making the determination must not make it merely on the basis
of…the person’s age or appearance, or a condition...or aspect of [her] behaviour,
which might lead others to make unjustified assumptions about what might be
in his best interests’.302
Courts must therefore balance the stated wishes and interests of the individual with the
need to protect and care for members of the community. If a stringent application of
patient autonomy pervades then ‘inappropriate infringements on personal liberty’303
are inevitable, however, an overly broad application will result in the failure to protect
the individual.
An NHS Foundation Trust v Ms X304 and Re E (Medical Treatment Anorexia) 305, in
comparison to Re T (Adult Refusal of Treatment), 306 demonstrate a pattern of
300 See Re T (Adult: Refusal o f Treatment) [1993] Fam 95, 102. See also Airedale NHS Trust v Bland
302 ibid.
303 Jillian C raigie, ‘I ntroduction: Mental Capacity and Value Neutrality’ (2013) 9 (1) International
Journal of Law in Context 1, 1.
304 An NHS Foundation Trust v Ms X (By Her Litigation Friend, the Official Solicitor) [2014] EWCH 35
305 Re E (Medical Treatment Anorexia) [2012] EWHC 1639.
306 Re T (Adult: Refusal of Treatment) [1993] Fam 95.

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