The incompetent patientz

This group of patients has recently been the subject of considerable legal attention in the United Kingdom (!.o.n 1993; Sc9t!ish Law C.ommjssion 19.9.5).

Those who are mentally handicapped and those who are mentally ill would fall within this category. Special laws generally exist in respect of the mentally ill, and the requirements of consent are often less problematic, at least with regard to treatment which is specifically related to the mental illness itself. However, the mere status of mental illness will not necessarily mean that the individual should not be given the same opportunity to agree to or refuse therapy for other conditions (Re C (adult: refusal of medical treatment) [1994] 1 All ER 819 (England)). The law, and ethics, would still seek to accord to the mentally ill the same rights as other patients, intervening in a patient's decision only when it is manifestly irrational as a result of the pre-existing condition.

Equally, the mentally handicapped should be given respect. This requires that, whenever possible, the same information should be given to them as would be provided to any other patient. If the patient can understand the information, then his or her choices should be given credence. In this group, however, the problem will sometimes be that the offering of information will serve no purpose since the patient will be unable to understand it. In such cases, where the patient is an adult, the doctor is confronted with real difficulties. If the patient is an adult, there is no one else who can agree to or refuse treatment on his or her behalf. Although it is common to seek the views of relatives, their choices have no legal standing. Therefore in cases of this sort, particularly if the treatment is serious (such as sterilization), the authority of a court will generally be advisable before proceeding.

Courts in the United Kingdom will generally decide on the basis of a 'best interests' test. In other words, they will decide what outcome will provide the most benefit for the patient concerned. This test is often criticized because it seems to follow the clinical recommendation in almost all cases, leading to the suspicion that 'best interests' can be defined as 'best medicine'. However, it is clear that, by analogy with the competent patient, the optimal clinical recommendation is only one part of the equation. Personal and other matters may intrude to lead to a rejection of the recommended treatment. If respect for persons is central to the ethical practice of medicine, then that respect should be extended to all patients and not merely some of them.

In other countries, such as the United States and Canada, courts have sometimes applied an alternative test—that of 'substituted judgment' ( Cruzan v. Director, Missouri Department of Health 110 S Ct 2841 (1990) (United States); Re Eve (1986) 31 DLR (4th) 1 (Canada)). This test requires the court to place itself in the position of the patient and try to work out what the patient would have decided had he or she been able to make a decision. This test is also the subject of concern, since effectively (unless there are individuals who can testify that the patient had previously expressed specific opinions) it involves guesswork. In any event, the outcome of the substituted judgment test may equally be that the clinical recommendation is routinely followed, since most people would imagine that advised or advisable therapy is what the person would have chosen.

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