Intended for healthcare professionals

Observations Ethics Man

Update on the UK law on consent

BMJ 2015; 350 doi: (Published 16 March 2015) Cite this as: BMJ 2015;350:h1481

We should all - laymen and professionals - be using the same law, and 'playing the same game'

As Dr Lewis has 'appreciated' this discussion between Mr Goh and myself, I will respond to Mr Goh's recent piece.

Our judges in England, have in the past commented that 'informed consent' is a concept present in US law, but absent from English law: some judges have made that comment, even in recent years. I would also comment that medics usually think in terms of medical ethics first, whereas I insist that first you must work from a country's law: in particular, if there is primary legislation, you should work by reading and 'understanding' the Act in question. Judges try to avoid 'changing legislation', so unless a piece of legislative law is either unclear, or contains an internal contradiction, 'judges will not contradict the law'. And as Lady Hale's comment [which I reproduced in an earlier piece] makes clear, judges sort out the principles in their own minds, and then are forced to try and explain these principles using words (a process, which is not without its problems). And a simple phrase – ‘informed consent’ – is not enough: the logical principle beneath the words ‘informed consent’ is clear enough, but the term could be ‘operationally different’ in different countries [depending on national [varying] interpretations, by courts, etc, of ‘how much informing is satisfactory in the real world’].

The Mental Capacity Act, is an unusual piece of legislation: not only does it state that anybody caring for a mentally-incapable person must make decisions 'in the person's best interests', without any clear explanation of what 'best interests' means, but the Act also allows a person to appoint a person as his/her attorney (for decisions about treatment, this would be a 'welfare attorney') for best-interests decision making. Section 6(6) of the MCA, very clearly places a welfare attorney in charge of best-interests decision making - and most welfare attorneys, will be laymen, and therefore not 'expert' in either medical ethics or in law. It logically follows, that whatever 'best interests' means, it must be possible to deduce that, from the MCA itself - the law contained in the MCA applies to all decision-makers, and it is unreasonable to expect lay decision makers to read beyond the Act itself, while lawyers tend to argue from 'historical case law' (logically, all 'case law' prior to the MCA, would be incorporated within the Act itself when it was written). So 'read the Act' and 'understand the case law from which the Act developed’ are equivalent [except for any new law an Act introduced: for the MCA, Advance Decisions were new law]. It also follows from the ability to appoint a layman to control best-interests decision making, that for the purposes of the MCA 'laymen must be able to understand the law satisfactorily'.

But reading an Act, or understanding the case law upon which the Act was founded, is a very different approach from 'working from medical ethical concepts'.

I find, that at present the laymen who are involved in the care of mentally-incapable patients, something very common for end-of-life, are legally obliged to obey the MCA, while the professionals involved are departing from a 'neutral reading' of the Act, and imposing a very different mindset onto 'what the law is': that can't make any sense, because family carers and clinicians are both involved in end-of-life ! 'The game' has to be everyone playing football, or everyone playing rugby - it cannot sensibly be some people playing to the rules of football, and others to the rules of rugby, in the same match and on the same pitch !

Slightly off-topic (but not by much - as I have said, the MCA does include the rules for 'consent from mentally-capable patients' in section 3) I have written extensively about the MCA on the Dignity In Care website, and a PDF describing 'my analysis of the law' can be downloaded (you do not need to join the website - just click on the download link at the bottom of my article there) from the link I append.

As for 'how much must be explained during the consent discussion', the simplest answer is for whatever is explained to be recorded, and the record to be signed-off by both the clinician and the patient - that would remove these issues of uncertainty over who actually said what, and take most of the 'hindsight complications' out of things.

Competing interests: No competing interests

28 March 2015
Michael H Stone
Retired non clinical
None Private Individual
Coventry CV2 4HN