Establishing the capacity to refuse treatment
The law also requires the individual to have the intellectual capacity to refuse treatment.
Until the development of the legislative frameworks if an individual was unable to give consent or to refuse treatment as a result of lacking the capacity or competence to make a decision in relation to consent or refusal of treatment the courts will act in what they see as their "best interests". Several leading court actions demonstrate the application of this principle; e.g. Re F v West Berkshire AHA [1989] 2 WLR 1025,2 FLR 376; Re B (a minor) (Wardship : Sterilisation) [1987] 2 ALL ER 206.
In an attempt to establish an individual's capacity to refuse treatment, Mr Justice Thorpe (Re C, [1994] identified 5 requirements that must be fulfilled for an individual to be deemed competent:
- Understand a simple explanation of the prognosis and treatment
- Reason consistently about specific goals linked to their beliefs
- Choose to act on the basis of such reasoning
- Communicate the substance of their rationale
- Understand the practical consequences
These 5 conditions must be present over a sustained period i.e. the individual should be able to provide their rationale for refusal consistently over a period of time and the individual must pass the standard diagnostic tests for competence.
