Here are some stories where the capacity for one to make a decision has been questioned. Do you agree with the judgments that have been made?  

In a commentary of the UK perspective on Competency to Stand Trial written by Tim Exworthy, he discussed a Court of Appeal case which concerned a woman who had been involved in a traffic accident and was advised by doctors to have a blood transfusion to save her life. She refused and signed a waiver; however, this was challenged by her partner in court. He argued that this decision was made under the influence of her mother, who was a devout Jehovah Witness and was therefore against blood transfusions, and her daughter did not share the same beliefs. The judgment on this was that ‘the rationality and the consequences of the decision taken are not determinative of capacity’.

A later case involving a 68-year-old man clarified the elements to determine a person’s capacity. This man had chronic paranoid schizophrenia and had a grossly infected right leg. He was advised to have an amputation as chances of survival with other treatments were low. He refused the amputation and the ultimate conclusion on whether he had the capacity to make this decision was reached by weighing in the scales the preservation of life against the autonomy of the patient. The judgment was the ‘although his general capacity was impaired by his schizophrenia, it has not been established that he did not understand the nature, purpose and the effects of the treatment he refuses. I am satisfied that he has understood and retained the relevant treatment information, that in his own way he believes it, and that in the same fashion he has arrived at a clear choice’.

There are many more cases similar to this and therefore The Mental Capacity Act 2005 was created, and it functionally determines whether a person has the capacity to make a decision in a particular context. Section 5 in this act offers protection for the decision-maker if the authority to make the decision is given to the person providing care, against criminal and civil liability for certain acts connected with the care or treatment of that individual. However, it is not just that easy to say someone does not have capacity and make their decisions as the draft Code of Practice to the Act lists the ‘gravity of the decision and its consequences’ as a key factor in deciding whether there is a need for professional involvement in assessing an individual’s capacity to take a serious decision.

I did not write this blog post to answer a particular question, but I was intrigued by the two stories I read. As someone who has no legal expertise, I looked at those stories and thought in no way did either have the capacity to make their decisions, but from a lawful perspective, it is not as easy as that to decide. There is a lot of criteria that determine whether a person has the capacity, and this is written in more detail on another blog post ‘Considerations for fitness to stand trial’. I guess what you can take from this is having (or not having) capacity is not an easy thing to decide and requires the expertise of many. And for those who have a differing opinion to me and believed that these individuals had the capacity to make these decisions and understood the consequences just demonstrates how complex it really is.