Variations on a Theme of Consent

In a talk I gave on 20 October 2023 at the first meeting of the academic year of the Oxford Medical and Family Law Discussion Group, I explored variations on a theme of consent.

I started by highlighting the often underplayed differences between the approaches to consent taken by those focusing on negligence, pushing towards ever greater disclosure of possible risks, and those focusing on supporting decision-making amongst those with cognitive impairments—a difference encapsulated in these two passages:

[…] An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. —Montgomery v Lanarkshire Health Board [2015] UKSC 11

What is required here is a broad, general understanding of the kind that is expected from the population at large. JB is not required to understand every last piece of information about her situation and her options: even her doctors would not make that claim. It must also be remembered that common strategies for dealing with unpalatable dilemmas – for example indecision, avoidance or vacillation – are not to be confused with incapacity. We should not ask more of people whose capacity is questioned than of those whose capacity is undoubted.—Heart of England NHS Foundation Trust v JB [2014] EWCOP 342  

I then turned to emphasising how, in the context of those with impaired decision-making capacity, the Supreme Court in A Local Authority v JB [2021] UKSC 52 had clarified the ordering of the questions as being  

1. Is the person able to make a decision? If not:  
2. Is there an impairment or disturbance in the functioning of the person’s mind or brain? If so:  
3. Is the person’s inability to make the decision because of the identified impairment or disturbance?  

I identified two reasons why it mattered to proceed in this order (over and above the fact that this is the law!):  

1. To minimise the chances of nudging assessors into thinking that a person has—say—dementia, and hence that they cannot make decisions;  
2. To give effect to the ‘support principle’ contained in s.1(3) Mental Capacity Act 2005 (MCA 2005), by requiring an intense focus on what appears to be the person’s apparent functional difficulties—if these can be overcome, there is therefore no need to go on to consider why they might not be able to make the decision.  

By reference to North Bristol NHS Trust v R [2023] EWCOP 5 and An NHS Trust v ST & Anor [2023] EWCOP 40, I explored the ways in which the Court of Protection is currently thinking about the so-called ‘diagnostic’ element, and touched upon some of the issues that may arise where the view is taken that a person has an impairment / disturbance in the face of medical evidence to the contrary.  

I then explored whether it is really sufficient for consent to be voluntary, capacitous and settled—the ‘holy trinity’ of medical law. I asked first what is likely to happen where a person refuses to give any reason at all for their decision, and then highlighted the guidance from the Association for Palliative Medicine about ventilator removal at the request of patients with motor neurone disease, and specifically the passage that the doctor should record that:   

• the alternative approaches are known and rejected by the patient 

• the patient knows they will die as a consequence of withdrawal 

• there is no coercion, nor is the decision driven by mistaken kindness to the family 

• [is] a settled view of the patient (emphasis added)  

I asked what a doctor is meant to do where they think the decision is driven by mistaken kindness. I further asked if a court not shedding light on whether pure deliberative autonomy is insufficient if people are making choices due to a a lack of alternatives, or because of internalised feelings of worthlessness. This has implications for the debates around assisted suicide / assisted dying, given that they are almost invariably based upon mental capacity, and I took the opportunity to highlight the evidence I had led on on behalf of the Complex Life and Death Decisions Research Group before the UK Parliament’s Health and Social Care Select Committee’s inquiry into assisted dying.

Thinking further about consent in context, I drew the attention to the recent decision of Cobb J in Re RK (Capacity; Contact; Inherent Jurisdiction) [2023] EWCOP 37, and to the complexities of the border between the MCA 2005 and the inherent jurisdiction of the High Court. Noting the problematically haphazard development of the inherent jurisdiction, I suggested that the time might have come to revisit the unfinished work of the Law Commission in the 1990s on public law protection of vulnerable adults through a new project, having particular regard to whether and how the term ‘vulnerable adults’ and the remedies available should be addressed in light of the UN Convention on the Rights of Persons with Disabilities. And, as one last point on the inherent jurisdiction, I suggested also that it was problematic for guidance to rely upon Re T (Adult: refusal of medical treatment) [1992] 4 All ER 649, decided as it was at a time when the inherent jurisdiction covered both those we now would look at through the prism of the MCA 2005, and those we would consider to be capacitous but vulnerable. Put another way: we do not know what ‘box’ T was actually in for post-MCA 2005 purposes: was she unable to make the decision whether nor or to accept blood for MCA 2005 purposes, or coerced into refusing it?  

Next, and looking at a different angle on consent in context, I drew attention to the decision of the Court of Appeal in JJ, R (On the Application Of) v Spectrum Community Health CIC [2023] EWCA Civ 885, concerning a quadriplegic prisoner who wished to be fed solid food in circumstances where those providing care to him considered that this placed them at an unacceptable risk should he choke—even though he was capacitously accepting that risk. I noted how the case had been formulated on his behalf as being one about choice and autonomy, but that this had foundered upon the fact that common law does not contain a right ‘to demand, [which] obliges a clinician to provide, medical treatment that is not offered to that patient by their doctors’ (nor was such a right to be found in Article 8 of the European Convention on Human Rights). Separately, I invited the audience to ponder whether JJ’s case was an example of a situation where there had previously been a potentially helpful grey area, and where the court was only ever going to give an answer which might make it more difficult for people to do the ethically right thing. In discussion, I sought to emphasise that there are frequently many things that can be done to reduce the risk of choking, so as to avoid the hard-edged clash that arose in JJ’s case. We also considered how it would be desirable for the Crown Prosecution Service to publish guidance outlining factors pointing to and against prosecution in such cases, to try and square what is otherwise a clash of principles that is difficult to reconcile.

Pausing only to tweak the tail of those wedded to the idea that consent and refusal are different decisions when it comes to medical decision-making in relation to children,1 I concluded my talk with another area where thinking about consent has led to an irreconcilable clash of principles—that of sex. I noted how the Court of Appeal and Supreme Court in A Local Authority v JB [2021] UKSC 52 had reframed the ‘forward-looking’ question under the MCA 2005 as being—in general—whether the person has capacity to decide to engage in sexual relations. I identified how important this formulation was, as recognising that those with cognitive impairments have sexual desires, as opposed simply to being the passive recipients of the attentions of others. But I also noted that, by highlighting the need for the decision about engaging in sex to incorporate the need for the other to consent, the case made clear that there is a difficult tension between the two public goods of ensuring that sexual consent means sexual consent, and supporting the rights of those with cognitive impairments to express themselves sexually. 

After this whistlestop and somewhat haphazard tour around matters consent related, a wide ranging discussion encompassed the dangers of ‘diagnosis-first’ in assessing capacity in the context of anorexia, what the application of the Singaporean MCA can tell us about the ‘causative nexus’ between functional inability and impairment / disturbance in the functioning of the mind or brain, and what fills the gulf between black letter law and its application to individuals in the context of mental capacity and mental health law.