Appeal set out guidance concerning cases in which patients refused treatment
?case discussed further at p. 109 below). Where a patient possesses capacity then
they may refuse therapy; where a patient lacks capacity treatment may be given
where it is in the patient's best interests. If there is a question mark over the
patient's capacity then a proper assessment should be undertaken by an inde-
pendent psychiatrist. If there is a serious doubt as to the patient's competence and
adeclaration is sought ,the patient's solicitor should be informed. Where the
patient is incapable of instructing a solicitor then the official solicitor should be
involved. The guidance notes that in a situation of acute urgency an application to
the court may be inappropriate due to time constraints. Nonetheless ,it remains the
case that judicial guidance may have advantages in such difficult cases.
7.2.4 Particular problems in overriding refusal of consent
Free not forced consent
Apatient must reach her decision whether to consent or refuse treatment ,freely
and without pressure being applied by relatives or by carers. InRe Tin 1992
?discussed above) an important factor in the decision to authorise a transfusion
was that T's refusal came after she had spent time alone with her mother ,a
confirmed Jehovah's Witness. Ensuring that a patient gives free and full consent
may be practically very difficult for a nurse working on a busy ward. Inevitably the
amount of time that can be spent with a patient discussing the implications of a
decision is subject to the time constraints of practice ,but the patient must not be
browbeaten by relatives or by medical staff into making the decision. In
determining whether consent has been given in a particular situation the court will
look to the circumstances. The fact that a patient is ,for example ,a prisoner does
not mean that she is unable to give free consent. InFreemanv.Home Office?1984)
the court held that whether the prisoner/patient had ,in fact ,consented was a
question of fact for each individual case. But in this type of situation it is of
particular importance that when information is given to the patient it is made clear
to her that she has a free choice.
7.2.5 Pregnant women refusing care
Amidwife is faced with a pregnant woman in difficulties in labour but who is
refusing even to contemplate a caesarean section. By rejecting treatment she is
placing her life and that of the fetus in jeopardy. Should her refusal of treatment be
respected? This issue came before the English courts in a series of cases during the
1990s. InRe S?1992) the case concerned a woman six days overdue giving birth
where the medical team sought to undertake a caesarean section. To attempt a
normal birth would have caused a very grave risk of rupture to the uterus because
the fetus was in transverse lie ,placing the lives of mother and child in grave
danger. S ,a born again Christian ,refused the operation because it was against her
religious beliefs. The hospital went to court to obtain a declaration which was
controversially granted by Sir Stephen Brown. The judge made reference to the
rights of the fetus ,but English courts have in the past consistently rejected claims
that the fetus has such rights [24]. Second ,Sir Stephen Brown placed some
Consent and the Capable Adult Patient 105