given appropriate information about the implications of the test ,and
appropriate time to consider and discuss them.'It is submitted that this is the appropriate approach to take and that testing should
not be undertaken without the patient being made clearly aware of the
consequences.
7.1. 3Capacity to consent
In order for consent to be valid in law a patient must be capable of making that
treatment decision. Adult patients are presumed to have capacity to consent or to
refuse consent to a particular treatment but this refusal can be rebutted ?Re T
?adult: refusal of treatment)?1992)). But what is meant by `capacity'? [8] Obviously
the patient will require some understanding of the implications of the decision
which he or she is to make ,but how much? InRe C?adult: refusal of treatment)
?1994) the court upheld the right of a 68 year old paranoid schizophrenic who had
developed gangrene in his foot to prevent his foot being amputated in the future
without his express written consent. Mr Justice Thorpe suggested a three-part test
to detemine capacity:
`... first ,comprehending and retaining treatment information ,secondly ,
believing it and thirdly ,weighing it in the balance to arrive at a choice.'At the hearing it was claimed that C was not competent because of his delusions
that he was a doctor and that whatever treatment was given to him was calculated
to destroy his body. But despite these claims Mr Justice Thorpe held that he was
satisfied that C was capable of giving or refusing consent because he understood
and had retained the relevant treatment information and believed it and had
arrived at a clear choice.
One potential problem with the test inRe Cis that it makes capacity dependent
on the information which the patient is actually given. If the nurse provides a
patient with a great deal of complex information she may be unable to understand
it and as a result lack capacity. In contrast ,if a basic explanation is given to that
very same patient she may possess capacity to consent [9].
This approach was followed in 1995 by the Law Commission in their report
Mental Incapacityconcerning the care and treatment of those patients with mental
incapacity [10]. They stated that the test should be decision-relative. They
proposed that legislation should provide that a person should be deemed to lack
capacity if at the material time he or she is:
?1) unable by reason of mental disability to make a decision on the matter in
question;
?2) unable to communicate a decision on the matter because he or she is
unconscious or for any other reason.
The Law Commission defined mental disability' as beingany disability or
disorder of the mind or brain ,whether permanent or temporary which results in
an impairment or disturbance of mental functioning'. They proposed that a person
should be unable to make a decision on the basis of mental disability:
Consent and the Capable Adult Patient 101