----- Original Message -----
From: "Tony Adams"
Subject: Re: relatives, resus and consent
> I fully refute the notion that for patients without capacity "the Doctor
> decides what's in their best interests". This is not supported by case
law.
>
> There are examples, in end of live decisions - Bland (PVS)and the cases
that
> have followed this judgement; several Mental Health cases on treatment;
> Fertility and Reproductive cases - sterilisation being a common question
put
> to the court. I think it's erroneous to suggest that these decisions are
> made by clinicians alone.
>
> Whether we split hairs between a "declaration of legality" or "consent" I
> think it should be appreciated that the principle of applying to the court
> for permission to carry out a procedure or treatment on someone who is
> incapable of giving their consent has been long established and those who
> ignore it do so at their own peril!
Not true...for example, in Bland there was no "consent" to any form of
treatment, merely a decision that it was "not unlawful" to discontinue
artificial support (feeding). A court can never "consent" to treatment for
an adult. They do not give "permission", as such, they merely indicate that
a criminal prosecution or a civil action against the treating doctor is
unlikely to be upheld. For the incompetent patient, it is indeed the case,
under common law, that the doctor must decide what is in the patient's best
interests. It is only rarely the case that an application for treatment is
made to a court, and even then, the court will not "grant permission", it
will merely rule that the proposed course is not unlawful. We deal with
incompetent patients every day and can lawfully act in the patient's best
interests without resorting to the courts.
Adrian Fogarty
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