classes of people for whom consent is problematic, not in specific cases but in
general. These are people who, in legal terminology, lack thecapacityto give
consent, not because theydon'tunderstand but because theycan'tand can't be
brought to understand. Small children are an obvious example. It isn't that they
cannot make choices, but that they do not understand the world well enough to
realise what their choices might imply. Their developing knowledge means that
they are gradually better able to understand and, therefore, more and more able to
give consent which is real and informed. Capacity is, in other words, not some-
thing which either exists or does not. It is a gradual thing. Children can be in a
position to be told or consulted about what may happen without being ready to
take the final decision for themselves. Or else they may be ready to take decisions
in some areas but not in others see section 10.2.1 in part A of this chapter). In
practice, the law's willingness to allow young people under 18 to make treatment
decisions will rest on the seriousness of those decisions see section 10.2.2).
Equally with adults it can be true that capacity can be diminished or partial.
For example, there is the case ofRe Tsee section 10.4.2 in part A of this
chapter), where the court decided that a refusal of treatment was made under the
undue influence of the patient's mother and that there was reason to believe that
the patient did not fully understand its implications. There might be enormous
difficulty in determining this kind of issue. In the American case of Mary C.
Northern [5], she was described by the guardian appointed for her by the court as
`... 72 years of age ... [and] ... in possession of a good memory and recall,
responds accurately to questions asked her, is coherent and intelligent in her
conversation and is of sound mind'. She was suffering from gangrene in both feet
consequent upon frostbite and burns, but refused to have the feet amputated, as
her surgeons were urging her to. Though otherwise apparently entirely rational, it
emerged in conversation that she very much wanted to liveandvery much wanted
to save her feet. She did not seem able to grasp that there was only a one in ten
chance that both things could happen and resolutely refused to consider, except as
abstract hypotheses, that she would have to choose between them. The court
decided to authorise surgery, apparently accepting the view that an otherwise
apparently competent adult might, nonetheless, be incompetent in the matter of
one specific decision. In the light of the transcripts, which are too lengthy to quote
here, this would seem to have been the right decision. Mary Northern seems to
have combined a general rational competence with a pathological block with
regard to the condition of her feet, which she believed had got better and about
which her physicians were lying or mistaken.
How are we to distinguish such cases from the case study about Carla in section
10.3.4? May we characterise Carla as an otherwise rational patient with a patho-
logical block about blood transfusions? We might wish to argue that she is not
irrational, she simply has beliefs which the rest of us do not share but cannot
disprove. But Mary Northern's irrationality, in the end, came down to her refusal to
give up a belief about the condition of her feet which no one was able to prove to
her was false. There is no easy answer to the question of what makes belief irra-
tional. It may help resolve the problem of distinguishing non-standard religious
beliefs from those of people like Mary Northern that Mary Northern's came from
nowhere, that they were ungrounded by anything apart from what seems to be a
The Critically Ill Patient 215