Re M B [1997] 2 FLR 426 (CA)

Mental incapacity – medical intervention – consent – guidance – declaration – best interests

This case highlighted temporary factors such as fear which may affect a person’s capacity to consent and advocates identifying potential problems such as a fear of needles as far in advance as possible.

MB had consented to a Caesarean section but not to anaesthesia by injection, because of a fear of needles. However, the Court held that, applying the above principles, MB temporarily lacked capacity because of her fear of needles and therefore the doctors were entitled to administer the anaesthetic in an emergency if it was in MB’s best interests to do so. The best interests of the patient were not limited to medical matters and it was obvious that MB was more likely to suffer significant long-term harm from death or injury to the baby than from the giving of the anaesthetic.

The Court of Appeal gave the following guidance as to applications for declarations of the lawfulness of medical intervention where capacity was in issue:

It was a criminal and tortious assault to perform physically invasive treatment without consent (subject to (iv)).

Every person was presumed to have the prerequisite capacity to decide until that presumption was rebutted.

A mentally competent patient had the absolute right to refuse treatment for any reason at all, even if it led to her own death.

Medical treatment could be undertaken in an emergency, even if through a lack of capacity no consent had been competently given, provided that the treatment was a necessity and did no more than was reasonably required in the best interests of the patient.

A person lacked capacity if some impairment or disturbance of mental functioning rendered the person unable to make a decision whether to consent to or refuse treatment.

Temporary factors may completely erode capacity, but must have done so to the extent that the ability to decide is clearly absent. Fear and panic may also destroy the capacity to make a decision.

Irrationality did not in itself amount to incompetence to decide, but might have been a symptom of it.

The extent of force or compulsion which may become necessary could only be judged by the health professionals in the individual case.

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