References
A critical appraisal of the impact of Section 3 of the Mental Capacity Act (2005)
Abstract
Paramedic's have verbalised uncertainty on how to proceed when treating unwell patients who refuse treatment, stating that they feel ill-equipped to interpret situations when patients refuse treatment. They expressed a need to be formally trained in how to systematically, yet quickly, assess a patient's capacity, rather than relying on intuition or opting out with the ‘take them to hospital’ approach, as they report it is better to face the accusation of assault or battery, than allegations of negligence.
This article will explore the appropriate mechanisms and approach for the assessment of capacity in emergency situations. Capacity will be defined according to the Mental Capacity Act 2005 (c.9), with an explanation of consent and the particular difficulties faced by paramedics in the assessment of capacity in an emergency will be identified and analysed.
The English law clearly states that the treatment of a competent patient is unlawful unless the patient consents to it (Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649). Consent is the legal expression of the principles of self-determination and autonomy (Feldman, 2000: 67). There is no statute specifically on consent; hence, legal principles have been established through case law (Re C (adult refusal of medical treatment) [1994]; Chester v Ashfar [2004]; Chatterson v Gershon [1981]). Consent must be informed and this is always difficult, especially in emergencies. Jackson (2008) states that informed consent is commonly used to describe two legal duties: the duty to obtain the patient's consent before treatment and the duty to ensure that the patient has been adequately informed about the risks and benefits of their therapeutic options. Del Carman and Joff (2005) structured informed consent into five areas: disclosure, decision, understanding, capacity to give consent and voluntarism. Consent of the patient will prevent a paramedic from being liable for the tort of battery, and Lord Mustill showed this protection in Airedale NHS Trust v Bland when he stated:
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