Thus the courts have affirmed that for treatment to be lawful under section 63 it
must be crucial to the mental disorder. While here the treatment was not treatment
for mental disorder within the provisions of the statute ,as Bailey Harris notes ,
questions regarding the connection between the disorder and the treatment
proposed are likely to arise in the future [52]. Finally ,there had been irregularities
in the documentation used by the hospital. Forms had not been completed when
the woman was transferred between hospitals ,as was required by regulations
made under section 19 of the Mental Health Act. This would ,in any event ,have
entitled S to discharge herself from hospital. While some might regard her decision
as unjustifiable or even irrational ,this did not mean that it was of no legal validity.
The Mental Health Act cannot be used as a means of circumventing the competent
woman's right to refuse a caesarean section. Finally ,the Court of Appeal criticised
the procedure adopted in the case of theex parteapplication; the application was
made without the knowledge of S and her legal advisors ,and as inRe MBthey set
out guidelines regarding the conduct of proceedings for a declaration.
The decisions of the Court of Appeal inRe MBandSt George's NHS Trustv.Sare
in many respects welcome. The autonomy of the patient is confirmed. Judicial
guidance is also given as to the correct procedures which should be adopted when
making an application for a declaration and the need for pregnant women and
their advisors to be provided with adequate information. Referring what appear to
be insurmountable differences between the parties to the courts constitutes
recognition that there are certain decisions which ,because of their inherently
difficult nature ,may not be suitable for resolution by the parties alone because of
their multi-faceted nature and because there are broader issues of public policy
which may arise. A conflict between the patient and her midwife or doctor over the
conduct of childbirth may in fact be well suited to the involvement of an inde-
pendent arbiter. It also provides safeguards for the patient. There are dangers in
low visibility of hard case' treatment decisions as evidenced by the concern of the courts ,for example ,to be involved in sanctioning certain invasive procedures on mentally incompetent adults such as sterilisation procedures or decisions at the end of life [53]. Nonetheless these controversial Court of Appeal decisions leave many issues to be resolved ,in particular around the interpretation ofcapacity' to decide [54]. The
test for capacity is decision-relative. The graver the consequences of the ultimate
decision ,the more careful the scrutiny given to the capacity of the patient to make
that decision. This is inevitable. The more serious the consequences of the refusal,
the more important it is to ensure that the patient possesses the necessary com-
petence to make the treatment decision. It is also the case that as temporary
incompetence may invalidate capacity ,it is important to ensure that the notion of
capacity is not manipulated to deny individual autonomy. Nurses and midwives as
patient advocates are likely to play important roles in this process.
7.2.7 Consent and civil law liability negligence
For a general discussion of the law of negligence see Chapter 6. Obtaining a broad
general consent to medical procedures being performed is sufficient to avoid lia-
bility in battery. But in addition ,for a patient to give full and effective consent she
Consent and the Capable Adult Patient 111