competent to consent to the particular treatment in question. To be involved in
these various activities, therefore, a nurse needs to be professionally qualified and
skilled to assist in determining capacity and to be capable of identifying the
warning signs that the patient may not be competent to consent. The nurse also
needs to be sufficiently aware to consider the legal situation prior to being
included in the treatment of the patient.
9.2.2 Second stage: Where the patient is competent
It is quite clear that, where patients are competent, their decisions must be
followed. This is so even where the patient is dying and it is life-saving treatment
which is refused, and this is a principle propounded in numerous cases, for
example,ReMB%medical treatment)#1997) andRv.Collins, Pathfinder Health
Services Trust, St George's NHS Trust, e xparte S#1998) [29]. In the event of a dispute
or uncertainty surrounding capacity, the courts have indicated that they should be
involved in deciding the issues, and this should be done as soon as possible.
However, the fact that a decision by a patient is deemed irrational' orcontrary to
what is to be expected of the majority of adults' [30] should not automatically give
cause to doubt as to the patient's competence. The nurse clearly has a role to play
in identifying potential problems of this nature and in so doing will be complying
with their professional code of ethics which requires the nurse to act as advocate
for their patient.
9.2.3 Third stage: Where the patient is not competent
If a patient is not competent, treatment may be given provided it is in their best
interests. By `best interests' in this context is meant that the treatment provides
some form of therapeutic benefit and a responsible body of other similar treatment
providers would also give the same treatment [31]. In certain situations a reference
to the court to confirm the validity of treatment may be required, for example
where a mentally incapable patient is to be sterilised, or a patient in a persistent
vegetative state is to have any life maintaining equipment disconnected or
treatment stopped [32].
Where reference to the court is not required, the treatment provider must
ascertain whether, according to the standards of their profession, the treatment
which is proposed would be carried out by a responsible body of that profession.
The question which may arise is whether the nurse is required to comply with the
doctor's request that treatment be provided. This places the nurse in a difficult
position if he or she is not satisfied that the treatment being proposed is indeed in
the best interests of the patient according to proper nursing standards. In a case
such as this #and considered more fully elsewhere in this book) it is submitted that
the nurse should be wary of simply following the doctor's instructions without at
least raising and recording any doubts there may be about the proposed course of
action.
Abest interests approach is not a surprising one where the patient is not, and
has not been, capable of expressing any treatment wishes. But defining a person's
best interests may be problematical. It may fail adequately to achieve the proper
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