courts do not have the jurisdiction to declare medical intervention lawful and
the question of her own best interests objectively considered ,does not
arise.' [31]She went on to state that:
`Irrationality is here used to connote a decision which is so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who has
applied his mind to the question to be decided could have arrived at it...
Although it might be thought that irrationality sits uneasily with competence to
decide ,panic ,indecisiveness and irrationality in themselves do not as such
amount to incompetence ,but they may be symptoms or evidence of incompe-
tence. The graver the consequences of the decision the commensurately greater
the level of competence is required to take the decision.' [32]Capacity may be eroded due to temporary incompetence as indicated by Lord
Donaldson in the earlier case ofRe Tas confusion ,shock ,pain and drugs'. The Court of Appeal on the facts of this particular case upheld the decision of the judge at first instance that MB had lacked capacity. She was competent to consent to the caesarean section. However she did not have competence to refuse as she wasat
that moment suffering an impairment of her mental functioning which disabled
her. She was temporarily incompetent [33].' Her phobia of needles impaired her
ability to decide. Two points arise here: first ,the extent to which the circumstances
of pregnancy itself served to erode the woman's capacity. In view of the fact that
temporary factors may erode capacity ,Kennedy is surely right to argue that
... there is an urgent need to establish the boundaries of the permissible' ,in this area [34]. Secondly ,Butler Sloss makes an important statement confirming that the law sanctionsirrational' refusals. Nonetheless the judgment leaves unclear where
the boundary can be drawn between acceptable' irrationality which will not impact on respect for the patient's right to decide ,and anirrational' decision
which may impact on capacity such that an individual's competence to make that
decision is affected.
Having found MB to be temporarily incompetent the Court of Appeal then
considered whether the procedure itself could be authorised. The House of Lords
inRe F?1988) confirmed that medical procedures may be undertaken on an
incompetent adult where it is in his or her best interests to do so. The House of
Lords indicated that best interests were to be determined with reference to the
Bolamtest [35] ,what a responsible body of professional practice would authorise
in such a situation ± a medically based test. The difficulties with the application of
such a test have been noted by academic commentators [36]. It is questionable how
far such a test formulated to determine issues of clinical judgement is appropriate
in a broader context of determining the authorisation of treatment decisions [37].
Afurther point is that of the interrelationship of the `best interests' test which
applies in the case of the mentally incompetent adult ,to the operation of the
welfare principle in cases concerning the treatment of children. InRe MBLady
Butler Sloss stated that:
`In considering the scope of best interests ,it seems to us that they have to be
treated on similar principles to the welfare of a child since the court and theConsent and the Capable Adult Patient 107