Now you see it, now you don't; consent and the legal protection of autonomy.
In this paper I describe the piecemeal development of the law regarding capacity to consent to treatment. I note how the requirement has changed from Justice Cardozo's low-level requirement of a 'sound mind' to the relatively high-level Re C test. I discuss the limitations of the Re C test. Particularly, that the requirements from believing information and ability to weigh information in the balance--which should be applied to the patient's ability to decide and not the actual treatment decision--are open to subjective abuse and the risk of abductive inferences made from the patient's actual decision. I suggest that, because of a generally poor standard of reasoning ability, only a minimal level of rationality should be required. Furthermore, I demonstrate the fallacy of the judicially approved risk related standard and discuss the Catch-22 situation that arises when it is implemented.
Maclean
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Department of Law, University of Southampton, Highfield, Southampton, SO17 1BJ, UK.
D000328:Adult; D003071:Cognition; D006801:Humans; D007258:Informed Consent / Q000331:legislation & jurisprudence; D016743:Mental Competency; D026706:Paternalism; D026684:Personal Autonomy; D012306:Risk; D006113:United Kingdom