balance, as Fennell points out, between the obligation to show respect for persons
#that is concern for the person's welfare and the sanctity of life) and the obligation
to respect the wishes of the person ± that is the balance between paternalism and
autonomy [33]. It should be noted that the current best interests test does not solve
the ethical differences which may occur within care teams concerned with the treatment of incapable patients' [34]. Not all treatment of incapable patients will fall to be considered by reference to the best interests test. It is widely accepted by the courts that a competent patient can make a valid statement as to treatment in advance of the treatment situation arising. SuchAdvance Directives' are subject to restrictive interpretation [35]:
. the patient must have had capacity at the time of making the statement;
. only clear refusals of specified treatment will be upheld;
. if there is any doubt as to validity, a declaration may be obtained or treatment
given in line with the best interests test;
. basic care cannot be refused #there is uncertainty as to what constitutes basic
care);
. requests for specified types of treatment cannot be binding;
. refusal of treatment which would fall within the remit of the MHA treatment
provisions cannot be refused by way of an advance directive.
Some form of investigation should therefore be carried out to ascertain if an
advance directive exists, although the lengths to which medical professionals
should go to comply with this have not been the subject of judicial consideration.
It should be noted that an incompetent patient who may be compliant in the
sense of remaining in hospital does not need to be detained formally in order that
treatment is provided. The provisions of section 131 prevail, in that detention
should only occur where it is needed in accordance with the relevant criteria of the
detention section. Any treatment provided will need to comply with the concept of
best interests under the common law [36].
9. 3Looking to the future:Who Decides? Making decisions on
behalf of incapacitated adultsandMaking Decisions
As the above has shown, clarity and precision are somewhat lacking in the current
legal framework where treatment is being considered for a person who cannot
consent. The Law Commission has produced consultation documents in the past
on this matter, without any proposals being taken forward for legislation. In 1997
the Government produced a Green Paper,Who Decides? Making decisions on behalf
of mentally incapacitated adults[37] which covered a range of legal issues relating to
individuals who lacked capacity and this paper substantially reflects the preceding
Law Commission Report on Mental Incapacity. In so doing, Who Decides?
promotes the ideal, already mentioned, that there should be a presumption against
lack of capacity. If capacity is in doubt, a new statutory definition of incapacity has
been suggested thus #para. 1.4):
170 Nursing Law and Ethics