chapter  4
69 Pages

Treating the Incapable Patient

This chapter concentrates on the basic legal framework and general principles, making particular reference to so-called non-therapeutic areas relating to the control of fertility by sterilisation and abortion. The common law developed the defence of necessity to avoid the unpalatable consequences of a doctor being civilly and criminally liable in such circumstances. Prior to the Mental Capacity Act it was possible to give someone an 'enduring power of attorney'. The Mental Capacity Act 2005 states that one of the principles of the Act is that 'an act done, or a decision made under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests'. Although the chapter is about patients who lack the capacity to consent, some children are able to consent, but, for the sake of completeness, both capable and incapable children will be dealt with consent to treatment, refusals of treatment, and children and the rights of parents.