`if the disability is such that ,at the time when the decision needs to be made he
or she is unable to understand or to retain the information relevant to the
decision ,including information about the reasonably foreseeable consequences
of failing to make that decision.'They recommended that the patient should have a basic comprehension of
information where this was given `in broad terms and simple language'.
Judicial approval of the approach of the Law Commission and ofRe Cwas given
inRe MB medical treatment) 1997).Here a woman with a needle phobia ,while
agreeing to a caesarean section which was clinically required ,repeatedly refused
the anaesthetic prior to the caesarean section. Lady Butler Sloss held that a person
is not capable of making a decision where:
`?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: and
?b) the patient is unable to use the information and weigh it in the balance as of
the process of arriving at a decision.'The Court of Appeal in this case went on to consider the scope of capacity and the
extent to which an individual may be regarded as incapable where the decision
which is made can be regarded by some as irrational. This is discussed further
below in the context of consent and refusal in relation to enforced caesarean
sections.
The Law Commission's proposals were far more extensive than simply setting
out one test and constituted a comprehensive review of capacity over the whole
area of care and treatment of the mentally incompetent adult including such issues
as advance directives ?see Chapter 10A) and powers of attorney. After a period in
which the Law Commission's report was left in abeyance the Government finally
undertook consultations on the report in their documentWho Decides?in 1997
[11] and in October 1999 issued a Green Paper ,the documentMaking Decisions
[12]. The ultimate proposals are considered in greater detail in other chapters in
this book. While the Law Commission proposed a radical revision of the law the
Government took a more limited approach ,althoughMaking Decisionsdid accept
the need for a statutory definition of capacity [13]. It is to be hoped that the Law
Commission's recommendations clarifying the position are taken forward in the
near future.
7.1.4 Fluctuating capacity
In a situation in which a patient has a fluctuating mental state it may be acutely
difficult to decide whether she is capable of giving consent. In such a situation it is
tempting to say that she lacks capacity to make treatment decisions. This is
because English law allows the incapacitated patient to be given such treatment as
those treating her believe to be in her best interestRe F?mental patient sterilisation)
?1989)). InRe R?aminor: wardship: consent to medical treatment)?1991) the Court
of Appeal held that a child with fluctuating mental capacity was to be regarded as
102 Nursing Law and Ethics