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Report No. 196

The C-Test and 'competency'

In Re C (adult: refusal of medical treatment) 1994 (1) All ER 819, the patient was suffering from schizophrenia, developed gangrene and doctors opined that his leg below knee be amputated. The patient refused. The hospital moved the Court for directions.

Thorpe J referred to what is now known as the C-Test-, that the patient must have the 'competency i.e. the capacity to understand and decide the medical opinion. But where his faculties are reduced on account of his chronic illness and he had not sufficiently understood his state and the medical opinion, his refusal is not binding and the doctors could approach the court for directions. The C-test deals with 'competency' and requires that the 'patient comprehended and retained information as to the proposed treatment, had believed it and had weighed it in the balance when making a choice'.

On facts, it was however held, that the patient's faculties were not so impaired by schizophrenia and that the presumption in favour of selfdetermination was not displaced. Reference was made to Re T (adult: refusal of medical treatment) 1992 (4) All ER 649 and to Airedale: 1993 (1) All ER 821 (HL).

In Re MB (Medical Treatment): 1997 (2) FLR 424, Dame ButlerSloss, was dealing with a case where a lady refused caesarian operation while doctors wanted to perform it and save the foetus. The patient had 'needle phobia'. Later the patient agreed but refused anaesthesia at 9 PM on 18.2.97. The local health authority applied to the Court at 9.25 PM. Hollis J granted permission. The decision was confirmed in Appeal.

In the Court of Appeal, Butler-Sloss LJ stated that a patient's consent is necessary for invasive medical treatment and that a mentally competent person was entitled to refuse medical treatment, whether for good or rational or even for irrational reasons or for no reasons at all, even where that decision might lead to his death. The only situation in which it is lawful for the doctors to intervene was where 'it is believed that the adult patient lacked the capacity to decide and the treatment was in the patient's best interests.

The court did not have to take into account the interests of the unborn child at risk from refusal of a competent mother to consent for medical intervention. of course, in situations of grave urgency, decision can be taken by Court as in Re F (Mental Patient: Sterlisation) 1990 (2) AC 1.

The Court of Appeal held that the lady had a needle phobia and was in panic and not capable of taking a decision and hence was to be treated as 'temporarily incompetent'. Caesarian operation allowed by Hollis J was affirmed. The operation was in best of medical interests of the patient. The Court of Appeal approved the principles laid down by Lord Donaldson in Re T (An Adult) (Refusal of Medical Treatment): 1992 (4) All ER 649; Re T (An Adult: Consent to Medical Treatment): 1992 (2) FCR 458 (case of pregnant lady involved in car accident who required blood transfusion) and by Justice Thorpe in Re C (Refusal of Medical Treatment): 1994 (1) All ER 819.

Butler-Sloss LJ considered these cases again in Tameside and Glossap Acute Services Trust v. CH: 1996 (1) FLR 762. Johnson J referred to these principles in Norform and Norwich Health Care (NHS) Trust v. W: 1996 (2) FLR 61.- namely the C-Test which required a competent adult and what the doctors felt was in best interests.

In Re L, Kinkwood J (unreported Judgment dated 5 th Dec. 1996) referred to in Re MB: 1997(2) FLR 426 held that the patient had needle phobia and was not competent to refuse.

In Ms B v. An NHS Hospital Trust: 2002 EWHC 429, Dame ButlerSloss (P) of Family Court stated that the principle of 'autonomy' permitted patients to refuse treatment. She referred to a large number of cases including Cruzan v. Director (1990) (110 S.Ct. 2841) decided in the US Supreme Court when it said:

"No right is held more sacred, or is more carefully guarded ... than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."

The patient was wavering but the Court held on facts, that the patient was competent. Ten guidelines were laid down to judge competence. They are as follows:

"(i) There is a presumption that a patient has the mental capacity to make decisions whether to consent to or refuse medical or surgical treatment offered to him/her.

(ii)If mental capacity is not in issue and the patient, having been given the relevant information and offered the available options, chose to refuse the treatment, that decision has to be respected by the doctors. Considerations that the best interests of the patient would indicate that the decision should be to consent to treatment are irrelevant.

(iii)If there is concern or doubt about the mental capacity of the patient, that doubt should be resolved as soon as possible, by doctors within the hospital or NHS Trust or by other normal medical procedures.

(iv)In the meantime, while the question of capacity is being resolved, the patient must, of course, be cared for in accordance with the judgment of the doctors as to the patient's best interests.

(v) If there are difficulties in deciding whether the patient has sufficient mental capacity, particularly if the refusal may have grave consequences for the patient, it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences.

The view of the patient may reflect a difference in values rather than an absence of competence and the assessment of capacity should be approached with this firmly in mind. The doctors must not allow their emotional reaction to or strong disagreement with the decision of the patient to cloud their judgment in answering the primary question whether the patient has the mental capacity to make the decision.

(vi)In the rare case where disagreement still exists about competence, it is of the utmost importance that the patient is fully informed of the steps being taken and made a part of the process. If the option of enlisting independent outside expertise is being considered, the doctor should discuss this with the patient so that any referral to a doctor outside the hospital would be, if possible, on a joint basis with the aim of helping both sides to resolve the disagreement. It may be crucial to the prospects of a good outcome that the patient is involved before the referral is made and feels equally engaged in the process.

(vii)If the hospital is faced with a dilemma which the doctors do not know how to resolve, it must be recognized and further steps taken as a matter of priority. Those in charge must not allow a situation of deadlock or drift to occur.

(viii)If there is no disagreement about competence but the doctors are for any reason unable to carry out the wishes of the patient, their duty is to find other doctors who will do so.

(ix)If all appropriate steps to seek independent assistance from medical experts outside the hospital have failed, the NHS Hospital Trust should not hesitate to make an application to the High Court or seek the advice of the Official Solicitor.

(x) The treating clinicians and the hospital should always have in mind that a seriously physically disabled patient who is mentally competent has the same right to personal autonomy and to make decisions as any other person with mental capacity.

In GMC v. Burke: (2005) EWCA (Civ) 1003 (CA), Lord Phillips of Worth Matravers stated that autonomy and self determination 'do not entitle the patient to insist on receiving a particular medical treatment regardless of nature of the treatment. Insofar as a doctor has a legal objection to provide treatment, this cannot be founded simply upon the fact that the patient demands it. The source of duty is elsewhere' (i.e. best interest).

Summarising the position, while patient's right to refuse or consent to medical treatment is fundamental and is binding on the doctors however rational or irrational it may be, but the said principle applies only where the patient is competent i.e. able to balance the advantages and disadvantages and mentally in a position to take a decision and is able to take an 'informed decision'.

If he is not competent or not mentally in a position to take an informed decision, his refusal or consent is not binding on the doctors and if they take a decision which is in the best interests of the patient, it is lawful. A patient cannot also compel a doctor to give him a particular line of treatment for it is for the doctors what treatment is necessary in the best interests of the patient. These aspects are proposed to be brought into proposed Bill.

(4) Giving invasive medical treatment contrary to a patient's will amounts to battery or in some cases, may amount to murder:

This issue is our off-shoot of the issue discussed under (3) above. Under (3), we have referred to the right of self-determination of a patient who is competent and who is in a mental frame to take an informed decision. We have also referred to the exceptional cases where the patient's view will not be binding on the doctors, namely, where the patient is not competent after weighing and balancing the advantages and disadvantages of the treatment or where even if competent, his decision is not an informed decision. In that event, the doctors can take a decision keeping in mind what is in the patient's best interests.

Under the present heading, we are considering the cases of a competent adult who is fit mentally to take an informed decision to refuse medical treatment and as to what will be the consequences if the doctors give invasive treatment against the will of the patient.

It is now well-settled that giving invasive medical treatment to a patient against his will, will amount to battery and in some cases, even to murde.- if it does not fall within the exception referred to under (3). It is so held in Airedale.

In English law, actual infliction of bodily injury is called 'battery'. Under section 319 of the Indian Penal Code, 1860, whoever 'causes bodily pain, disease or infirmity to any person is said to cause hurt'.

In Airedale: 1993 (1) All ER 821 (HL), Lord Keith of Kinkel observed that the giving of medical treatment will be unlawful both under the law or torts and criminal law of battery, where the patient has refused consent or where patient's consent has not been obtained. He referred to In re F (Mental Patient: Sterlisation): 1990 (2) AC 1. In the same case, Lord Browne-Wilkinson stated that any treatment given by a doctor which is invasive (i.e. involves any interference with the physical integrity of the patient) is unlawful unless done with the consent of the patient. It constitutes the crime of battery and the tort of trespass to the person.

Thus the principal is clear enough that invasive treatment amounts to battery if given against a patient's will. In some cases, it may even amount to murder. As the principle is well settled, no provision is necessary in the proposed Bill in this behalf.

(5) Advance Directives (Living Wills); and Powers of Attorney in favour of surrogates to be void in India, as a mater of public policy:

In several countries, it is permissible for a competent adult to execute an Advance Directive (Living Will) as to whether he or she should or should not be given medical treatment when he or she is terminally ill and not in a position to take a medical decision.

In US, there is also a further statutorily permitted procedure for executing a Medical Power of Attorney in favour of a close relative or friend (surrogate) to take a medical decision in such situations. These are called decisions of surrogates. US has built up a large case law on surrogates also apart from Advance Directives (Living Wills) because both these systems are permitted in that country. Needless to say, that both have created a number of complex problems in practice.

But in UK, the House of Lords in Airedale 1993(1) All ER 821 (HL) has rejected the Medical Power of Attorney procedure and said it is not recognized in UK. In Ireland also O'Haherty did not approve powers of attorney in Ward of Court, Re a: (1995) 1 LRM 401, in the particular case.

In U.K., advance directives are permissible and may or may not be binding (as explained below), but procedure by way of medical powers of attorney delegating authority to surrogates to take medical decisions is not accepted.

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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