Consent

I read Dr Bogod’s article with interest. It raises several important points:

1. The Mental Capacity Act 2005 (MCA 2005) provides for advance decisions to be formulated.

2. The MCA 2005 provides for the appointment of independent mental capacity advocates (IMCAs) but it needs to be clearly understood that the role of these individuals is only to provide background information to the decision maker so that the best interests of the patient can be determined. The IMCA has no role in defining the best interests, is not a decision maker and therefore, most importantly, does not ‘act on behalf of incapable patients’. Rather, the IMCA gathers information about the patient that will influence the doctor’s eventual decision about what may or may not be in the patient’s best interest.

   The IMCA would not usually be instructed in the case of Dr Bogod’s patient as she is accompanied by her daughter. The IMCAs are generally involved only in the case of ‘unbefriended’ patients who lack capacity, where there are no other persons who can inform the doctors of matters that may influence the determination of the patient’s best interests.

3. Before the advent of the MCA 2005, the common law defence of necessity allowed a surgeon to save the life of (or prevent irremediable harm to) an incompetent patient, usually in a clinical emergency. It needs to be understood that this doctrine would be entirely inapplicable to the case of the elderly patient that Dr Bogod is considering. The ‘legal vacuum’ that he describes would quite clearly have been filled, prior to the MCA 2005, by a carefully considered clinical decision on the basis of her best interest. If this had proved contentious, it would have been dealt with under the inherent jurisdiction of the High Court.

   This procedure has simply been codified into statute by the MCA 2005. Translated into the language of this new law, temporarily incapacitated patients can be operated on solely on the basis of their best interests only to save life or prevent irremediable harm. So if you wish to repair a ruptured aortic aneurysm in an incompetent patient, the ‘defence of necessity’ is all you require. However, if you wish to replace a hip as an elective procedure, the defence has no role whatsoever since the intervention is not immediately necessary and there should be ample opportunity first to determine the patient’s best interests and then act accordingly.

4. The reason why surgeons are so frequently reminded not to regard consent as valid ‘no matter how much time has passed’ is mainly because unbeknownst to the surgeon, the patient’s circumstances (as opposed to the risks and benefits of the procedure) may have changed. The patient may have: a new job, or lost their old one; new family; new mortgage; new partner; lost a child; been widowed; made bankrupt… and all of these may have altered the patient’s attitude to whether the surgery is still appropriate from their perspective.

5. In determining what information to provide, you should be guided, as Dr Bogod asserts, by what the reasonable patient would want to know — the reasonable patient being an honourable descendant of the man on the Clapham omnibus. The difficulty with being guided by what a ‘particular patient needs to know’ (as the Summary suggests) is that you have absolutely no idea what that might be. Naturally, we have a duty to answer any questions during the disclosure process, thus allowing us to get as close as possible to the particular patient’s requirements, but how can we possibly know what the person in front of us regards as the cornerstone of his or her decision? It is for this reason that in most jurisdictions, courts have established something approaching an objective standard (in English law: the reasonable patient) for whose benefit doctors formulate the disclosure of risks, benefits, alternatives, etc.