Treating temporarily incompetent patients

Competence cannot be determined by reasonableness of patient's decision

EDITOR,--Part of the recent discussion of the two case histories concerning the treatment of temporarily incompetent patients must be questioned.1 As Petra Wilson suggests, the mental competence required by law for valid consent to or refusal of medical treatment is not clearly defined, but the judge in the case cited analysed the abilities required, which were to comprehend and retain information about treatment, to believe such information, and to weigh the information to arrive at a choice.2 If these abilities are impaired by mental disorder or injury then capacity may be lost, but the law makes an important qualification: a mentally competent person is entitled to make decisions for irrational reasons.3 The law does not permit assessment of competence by examination of the reasonableness of the decision, contrary to Grant Gillett's ethical position.

Contrary to Zbigniew Szawarski's suggestion of a presumption of incompetence, the law presumes that every adult has mental capacity unless that presumption is rebutted. Any medical practice to the contrary would potentially undermine patients' firmly entrenched right to physical autonomy.

D W Yates seems to suggest that an authority to treat may arise from a patient being brought in by a relative. While this might be a pragmatic solution, it is ruled out by court decisions holding that, in the case of adult patients, no relative has the power to consent to or to refuse medical treatment on their behalf, although medical practice may require that a relative is consulted.4

In the case of an unconscious patient, in the absence of convincing evidence of a valid advance directive refusing treatment, doctors are free to provide whatever treatment they consider in their clinical judgment to be in the patient's best interests: any treatment necessary to save the patient's life is likely to come into that category. In the case of an uncooperative conscious patient the position is more difficult. The patient's competence must be assessed, and only if the doctors are satisfied that the patient lacks competence are they free to provide treatment against the patient's will in what they consider to be his or her best interests. This may include detaining the patient if that is in accordance with proper medical practice, but it is doubtful whether in such circumstancesthe police have any powers over and above those of the private citizen in cases in which the Mental Health Act does not apply.