|1. Medical treatment
amounts to an assault on the individual treated unless:-
(a) the individual being treated consents.
(b) if the individual is "mentally incapacitated",
the treatment is in that individual's best interests.
(c) the treatment is permitted without consent under
the Mental Health Act 1983.
What follows does not consider (c), and only deals
with the circumstances where the individual has not
been detained under the Mental Health Act.
2. "Mental capacity" is therefore
key to the individual retaining their right of self-determination.
An individual is presumed to have capacity to make decisions
about their own medical treatment unless he or she is
(a) take in and retain the information which is
relevant to the decision, particularly the likely
consequences of having or not having the treatment;
(b) believe the information; or
(c) weigh the information in the balance as a part
of the process of arriving at the decision.
Capacity is not "all or nothing". An individual
may have sufficient capacity to make some decisions,
but not others. Any assessment as to a person's capacity
therefore has to be made in relation to a particular
course of treatment. Just because an individual has
a "mental disorder" it does not mean that
they do not have the capacity to make a treatment decisions.
3. The Courts have developed principles in an
attempt to protect the interests people who are incapacitated.
Medical treatment should only be provided where it is
necessary, and it is in the best interests of the individual
concerned. It is not enough for the doctors simply to
be able to say that his/her treatment is not negligent.
4. What should be taken into account in deciding
what is in any particular individual's best interests?
In a fairly recent case the Court said that ethical,
moral, social and welfare considerations should be taken
into account. It has also been suggested that the following
factors are important:-
(a) the views of those whom it is appropriate
to consult and take into account e.g.
partners and near relatives;
(b) whether the same result be achieved by some less
restrictive/intrusive means. (When psychotropic
medication is being prescribed, consideration should
be given to whether the problem can be resolved through
removal of environmental triggers.); and
(c) the individual themselves should participate as
fully as possible in the decision.
The Role of the Court
5. If there is a dispute about capacity and/or
whether proposed treatment is in an individual's best
interests, that dispute can only be resolved by the
6. The Family Division of the High Court can
make a declaration in advance of treatment as to whether
or not it is in the individual's best interests. It
has tended to limit the use of this power to what it
sees as the most serious forms of treatment. "Invasive
surgery" falls within that category, which is why
many of the cases have concerned, for example, forced
steralisation of people with learning difficulties.
However, the Court may well be willing to exercise its
power in relation to the prescribing of psychotropic
drugs, particularly where serious side-effects are well-established.
The Human Rights Act 1998
7. The rights protected by the Human Rights
Act 1998 do not add much to what has been said above.
8. However, where they may be helpful is in
relation to "procedural safeguards". One of
the problems with the rights set out above is that they
can only protect the individual against future treatment
(or continuing treatment) if the case is taken to the
High Court which has the power to declare it to be unlawful.
If the individual does not have mental capacity to make
his or her own decisions, he or she will be dependent
on someone else doing this for them. There may be an
argument that two of the rights under the Human Rights
Act require more than this, in some circumstances. These
are the rights to respect for private life, and the
right to a fair trial (Articles 8 and 6). These rights
may, in effect, require doctors to seek the approval
of the Court before treating someone without mental
capacity where that treatment, potentially, has serious
9. Breaches of human rights give rise to the
right to sue for compensation, although the breach,
generally speaking, will have to have taken place after
2 October 2000, when the Human Rights Act came into