Medical Law Assignment Sample

Running head: MEDICAL LAW ASSIGNMENT
Medical Law assignment
Name of the Student
Name of the University
Author Note

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Introduction
In the field of healthcare and ethics, the principle of autonomy (self-determination) and
the principle ‘best interest’ are considered to be the most fundamental and universally accepted
medical law principles. These principles are based on the prerequisite of any medical
intervention, which requires a medical professional to obtain the consent of the patient before
undergoing any medical treatment on the patient1. The principle of autonomy or self-
determination of a patient upholds the right of a patient not to suffer any inhuman, degrading
treatment or any form of torture. The deprivation of the patient from giving his or her consent in
the medical treatment contravenes such right. In regards to the principle of best interest, given
the circumstances that exist between a doctor and a patient, the doctor is entitled to give consent
on behalf of the patient to perform the treatment if the patient lacks capacity to give consent to
such treatment. This consent given by the medical practitioners are perceived as consent given
for the best interest of the patients. This essay explains the concept of ‘best interest’ in medical
law and its significance in the context of refusal to or consent to medical treatment by patients
with capacity as well as patients lacking capacity2. The paper further highlights the importance of
consent of patients for medical treatment and that the absence of consent amounts to medical
negligence that is inconsistent with the ‘best interest’ principle in the context of English medical
law.
Best interest principle
1Knoppers, Bartha Maria, Yann Joly, and Vasiliki Rahimzadeh. "Introduction." Routledge Handbook of Medical
Law and Ethics. Routledge, 2014. 13-20.
2 Hall, Mark A., et al. Health care law and ethics. Wolters Kluwer Law & Business, 2018.

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While a competent adult is capable of giving consent to a medical treatment as well as the
adult person is capable of refusing medical treatment if he or she considers that such treatment is
contrary to the his or her best interest. The English laws usually regulate the consent of the
patients with permanent or acute incapacity, minors, patients with mental illness and minors.
However, such decision regarding medical treatment taken on behalf of the above-mentioned
patients must be taken in their best interest, which they would have taken themselves if they had
the capacity3.
In Re F 2 WLR 1025 (HL)4, best interest was stated to be used as a standard for making
decisions on behalf of a patient that lacks capacity to give consent to the medical treatment. In
the Mental Capacity Act [2005] (the Act), section 1(5)5 stipulates the concept of best interest
principle as a decision made or an act done on behalf of an adult who lacked capacity and that
such decision taken on their behalf must be in their best interest. Such decision may include
health, social care and financial decisions. In order to determine whether the decision taken on
behalf of the adult patient lacking capacity is taken in his bets interest, the following factors must
be taken into consideration as set out in the Act. Firstly, the decision is based on the present and
past wishes of the patients; secondly, values and beliefs that would have led to the same decision,
if the patient had capacity to decide. Lastly, any other relevant factors may be taken into
consideration while making such decision to ensure that it is the best interest of the patient6.
The application of best interest principle is common when the patients refuse to undergo
the medical treatment or do not give their consent to proceed with such treatment. The medical
3 Foster, Charles, and Jonathan Herring. "Rethinking the Welfare and Best Interest Principles." Altruism, Welfare
and the Law. Springer, Cham, 2015. 33-52.
4 Re F 2 WLR 1025 [1990] 2 AC 1, [1989] 2 WLR 1025, [1989] 2 All ER 545, CA and HL(E)
5 Mental Capacity Act [2005] (the Act) at section [1(5)]
6Stauch, Marc. Text, Cases & Materials on Medical Law. Routledge, 2017.

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professionals are prohibited from proceeding with any medical treatment without obtaining
consent from the patient, which would otherwise amount to a criminal offence. In English law,
the generally accepted principle in medical law is that a patient reserves the right to determine
whether they will undergo the treatment. The purpose of this principle is two-fold that is
explained in the case of Chester v Afshar [2004]7. In this case, Lord Steyn asserted that this
principle not only prevents the patients from suffering any physical injury which the patient had
not expected but also upholds the principle of autonomy or self-determination as well as the
dignity of each patients. This principle is also recognized in the Common Law, which entitles
every person to secure his or her bodily integrity against any invasion committed by others8.
Importance of Consent in medical law
According to Stauch (2017), English law emphasizes on the fact that the consent of a
patient in healthcare must be an ‘informed consent’ in order to safeguard the autonomy right of
such patient. Further, in order to establish that the consent given by such patient is valid, it is
important to prove the capacity of such patient to give consent to medical treatment and that it
was given on a voluntary basis after comprehending the nature of the treatment. Patients who
lack capacity to give consent to medical treatment may also exercise the right to autonomy but
such rights cannot be said to be an absolute right.
This issue relating to the exercise of autonomy while making a decision, is based on the
concept of consent as was established in Cantebury v Spence [1972] 464 F (2nd) 7729. The issue
related to autonomy was addressed as the court held that the right to self-decision or autonomy
can be exercised by a patient only if such patient possesses sufficient information to make a
7 Chester v Afshar [2004] UKHL 41, para 18
8 Brazier, Margaret, and Emma Cave. Medicine, patients and the law. Oxford University Press, 2016.
9 Cantebury v Spence [1972] 464 F (2nd) 772

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rational choice with respect to the medical treatment. The scope of the communication between
the patient and the medical professional must be evaluated based on the need of the patient.
The concept of informed consent is crucial in medical field, which establishes that a
concise, structured and clear explanation was provided to the patient prior to the commencement
of the treatment10. In order to establish that the consent is valid three essential elements must be
present that is, information, free will and capacity. The patient must have adequate information
regarding the treatment to give consent voluntarily. The third element that is related to the
capacity of the patient to give such consent, which depends on various factors that have been set
out in the Mental Capacity Act. Firstly, a trained professional must state that the patient lacks
capacity to give a valid consent. Secondly, the person has capacity until it is established that such
person despite an appropriate and effective communication, the patient is unable to make a
rational decision.
However, it cannot be said that a person lacks capacity if the patient does not arrive at a
decision that is opted by the medical professional. Moreover, the statute stipulates that the patient
who lacks capacity, the medical professional must decide on behalf of such patient, which is in
best interest of the patient. Donelly and Mary (2009) argues that though it is an acceptable
principle of medical law that treatment provided to incapacitated patient must be in the best
interest of the patient and that the healthcare provider must avoid tortuous liability, but the
interrelation between these two elements have not been explained precisely.
In Re SL (Adult Patient: Medical Treatment)11, Court of Appeal asserted that in
common law, the concept of ‘best interest’ extends beyond the responsibility of the doctor to act
10 British Medical Association. Assessment of Mental Capacity. The Law Society, 2015.
11 Re SL (Adult Patient: Medical Treatment) [1992] Oct 12;[1992]4:671-2.

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in conformity with competent and responsible professional opinion, and encompasses moral,
ethical and social consideration as well. The court further held that only because a person is a
doctor, it does not entitle to continue providing medical treatment as his duty is to determine
whether a particular treatment is appropriate for a patient to address the concerned health issue.
Here, the principle of autonomous comes into play as it enables the patients to determine
whether to give consent to or refuse to undergo such treatment. If the patient is of the opinion
that the offered treatment is for their best interest, the patient shall give his or her consent
otherwise will refuse the treatment. In case of incapacitated patient, the doctors are required to
determine the same that is, whether proceeding with the treatment would amount to best interest
of the patient. However, Donelly and Mary (2009) argues that this decision was overturned
where the evaluation of best interest shall be based on the clinical tests and particularly on the
test identified in Bolam’s case12.
The Bolam test or principle was established in English Tort Law, which is used in
medical negligence. In Bolam v Friern Hospital Management Committee [1957]13, the court
established the principle that addresses the first element of negligence, which is the existence of
duty of care between the nurse, doctor and other healthcare providers and the patient. The
doctors and the medical service providers shall not be held negligent if their conduct is
considered proper and doe in best interest of the patient by a responsible medical body or
authority.
According to Series (2015), it is said that decision taken by the doctors may not correlate
with the wishes of the patients and doctors cannot compel any treatment that is not clinically
12 Donnelly, Mary, and Best Interests. "Patient Participation and the Mental Capacity Act 2005’(2009)." Medical
Law Review 17 (2015): 1.
13 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

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indicated. The competent patient shall be entitled to refuse the treatment if it considers such
treatment to be unfit and against their best interests. Similarly, decision taken by the doctors shall
on behalf of patients lacking capacity, shall be based on the professional evaluation of the
medical interests of the medical professionals14.
Therefore, the statute has provided four best interests standards that must be taken into
consideration while a doctor decides on behalf of a patient that lacks capacity. Firstly, the
decision taken in best interests must be based on the medical needs of the patient. Secondly, the
decision must include broad welfare and social preferences, which are subsequent and distinct
from the medical needs determined by the medical professional. Thirdly, a decision taken in the
best interest must be a conflation of wider welfare and clinical issues. Lastly, the decision
undertaken by the medical professional must be an outcome of evaluation of the reasonable
preferences of the patient, if such patient was capable of making rational decision regarding the
treatment. This establishes that the concept of best interest principle shall be applicable
depending upon the particular circumstances.
Series (2015) states that determining the best interest of a patient is indeed an intricate
procedure and it is clearly difficult to recognize the best interest of an individual as well as those
factors that should be taken into consideration while determining such best interest. Series (2009)
argues that to address this issue, the ‘balance sheet’ approach was introduced in the case Re A
[2000] 1 FLR at 555 or the (Mental Patient: Sterilization) case15. The method was proposed to
determine the best interest of an individual as is used in financial accounting. The approach
requires maintaining two columns where one will include the factors that will benefit the patient
14 Series, Lucy. "Relationships, autonomy and legal capacity: Mental capacity and support paradigms." International
journal of law and psychiatry 40 (2015): 80-91.
15 Re A [2000] 1 FLR at 555

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and the other will include factors that will counterbalance the disadvantages to the patient and
whichever column has more credit than the other does, the balance of interest of the person shall
be said to lie. This approach gives an objective overview of the issues related to determination of
best of interest of the patients. Although the issues related to determination of best interests are
subjected to review in each individual case, but the factors that influences such determination
must include welfare, social, emotional issues as well apart from the other medical issues16.
In Re A [2000] 1 FLR17, the court decided that assessment of best interest is similar to the
welfare evaluation, which requires detail assessment of all the factors, are likely to have an
impact on the concerned individual, patient in medical cases under the Mental Capacity Act
[2005]. The best interest standard must not be perceived as something that directs which interests
are to be safeguarded instead it should be deemed as a general principle which states that one
must make a decision that is overall beneficial to the patient and serves his or her best interests.
There have been issues pertaining to the participation of people lacking mental capacity
to make a rational decision with respect to the medical treatment. However, section [4(4)] of
MCA encourages incapacitated persons to take part in the decision-making process as their
mental incapacity may prohibit them from making any rational decision but does not bar them
from being engaged in the decision making process18. This is to ensure that their wishes are taken
into account while the decision is being taken on their behalf.
The major concern that arises from the capacity of individual in the decision-making
process includes communication and language related issues. The significant issue related to
16Dawson, John. "A realistic approach to assessing mental health laws' compliance with the UNCRPD."
International Journal of Law and Psychiatry 40 (2015): 70-79.
17 Re A [2000] 1 FLR
18 Mental Capacity Act [2005] (the Act) at section [4(4)]

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communication is the ability of person to communicate their wishes and thoughts. This may take
place due to the inability of the persons to converse either verbally or non-verbally. For instance,
patients in vegetative state are unable to communicate or patients who must be provided with the
option of non-verbal communication method like signboards or carers acting as translator.
Cartwright (2016) argues that option of providing the patient with translator may at times, be
prejudicial for the patients as such translators may express their individual thoughts with the
belief that their decision would be more beneficial to the patient19.
For patients lacking mental capacity that has never been capable of taking any decision
shall find it difficult to express their wishes while making a decision regarding their medical
treatment. This is because they will face difficulty in understanding the issues and the nature of
the treatment that has been clinically indicated for addressing the medical issues of such patient.
Patients who have become incapacitated at the time of decision-making and are incapable of
taking part in the decision-making process may be provided with the option of advance
directives, which will enable them to express their wishes while making decisions.
This alternative option has been stipulated in the legislative provision of section [24] of
the MCA20. The statutory provision stipulates that these advance directives shall be complied
with in the event of making decisions regarding end-of life treatment, if the patient provided such
directives prior to the loosing of his mental capacity. Cartwright (2016) states that apart from
such directives any other written orders given by the patient prior to becoming mentally
incapable should be reviewed. Nevertheless, the nature of the orders and capacity of the
19 Cartwright, Colleen Maria, et al. "Palliative care and other physicians’ knowledge, attitudes and practice relating
to the law on withholding/withdrawing life-sustaining treatment: survey results." Palliative medicine 30.2 (2016):
171-179.
20 Mental Capacity Act [2005] (the Act) at section [24]

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individual while he gave such written orders must also be taken into consideration while making
any decision.
In regards to best interest of children, their capacity to make clinical decisions is
regulated by the Children Act21. The English law refuses to deny children the right to take
decisions and categorizes them into children below 16 years and children of 16 and 17 years. In
Gillick v West Norfolk and Wisbech Area health Authority [1986]22, the potential capacity of
children had been extended to children below 16 years as well depending on certain
circumstances like, level of exposure, family background, intellectual gift. However, Laurie
(2016) argues that the potential risks associated with the powers given to children in the Gillick
case have been counterbalanced with the intervention of courts23. In Re W [19992]24, medical
treatment of a minor included life-saving treatment which was refused by the minor of 16 years
old. However, the court rejected the decision and stated that his decision is unacceptable, as the
decision will cause him severe permanent injury or even death. Such refusal to treatment was
said to be contrary to the best interest of the child.
In case of patients suffering from communicable disease, the right to consent of such
individuals is restricted and they may be forced to undergo treatment even if they have refused to
perform such treatment. This is done to in the interest of the public. The English law has also
considered the public interest in the context of preserving the autonomy rights of the patients. If
a patient has a communicable disease or a patient with mental illness poses a threat of harm to
21 Children Act 2004
22 Gillick v West Norfolk and Wisbech Area health Authority [1986] AC 112; [1985] 3 ALL ER 402
23 Laurie, Graeme. "The autonomy of others: reflections on the rise and rise of patient choice in contemporary
medical law." First Do No Harm. Routledge, 2016. 147-166.
24 Re W [19992] 4 ALL ER 627

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the society, the English law gives more priority to the public interest than to the interests of the
individuals.
Refusal to medical treatment
In regards to the adult patients, as explained earlier, that all the adult patients are deemed
capable of giving consent to or refuse a treatment unless it is established that despite several
reasonable steps, the patient was incapable of making any decision. Laurie (2016) states that this
principle is fundamental in medical law as it is derived from the principle that benefit of doubt
must be give to a person before considering the person to be mentally incapacitated as this may
also impact the reputation of the person25. This principle portrays the criminal principle, which
states that a person must be considered as innocent unless their guilt is proved.
Further, though every patient has a right to refuse a treatment but they cannot demand
treatment that has not been clinically recommended and the doctors are neither legally nor
ethically obligated to provide with such treatment.
In Re Burke v General Medical Council and Disability Rights Commission and the
Offcial Solicitor [2004]26, the Court of Appeal rejected the demand of the plaintiff to obtain a
particular treatment that will assist him to swallow all his life and prevented the doctors from
taking decision on his behalf. The court based its decision on the case of Airedale NHS trust v
Bland [1993] A.C. 78927 and stated that an advance directive claiming life-long treatment is
inconsistent with the MCA as in such case the doctor is required to consider the best interest of
the incapacitated patient into consideration.
25Laurie, Graeme. "The autonomy of others: reflections on the rise and rise of patient choice in contemporary
medical law." First Do No Harm. Routledge, 2016. 147-166.
26 Re Burke v General Medical Council and Disability Rights Commission and the Offcial Solicitor [2004] EWHC
1879
27 Airedale NHS trust v Bland [1993] A.C. 789

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Conclusion
From the above discussion, it can be inferred that the concept of ‘best interest’ has been
developed with respect to patients lacking capacity to make their own decisions28. However, the
doctor is required to explain every detail of the treatment to the patient and if the patient after
comprehending the nature of treatment refuses it, it shall be respected unless such refusal
amounts to death or severe injury of such patient. Then, the capacity of the patient shall be
determined and decision shall be taken considering the best interests of the patient. Although it is
an intricate procedure but what must be considered is the wishes of the patients that must be
respected. However, their wishes must be adhered to only if they are reasonable and the person
deciding on behalf of the incapacitated persons does balancing to ensure best interest of such
person is fulfilled.
28Foster, Charles, and Jonathan Herring. "Rethinking the Welfare and Best Interest Principles." Altruism, Welfare
and the Law. Springer, Cham, 2015. 33-52.

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References
Airedale NHS trust v Bland [1993] A.C. 789
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Brazier, Margaret, and Emma Cave. Medicine, patients and the law. Oxford University Press,
2016.
British Medical Association. Assessment of Mental Capacity. The Law Society, 2015.
Cantebury v Spence [1972] 464 F (2nd) 772
Cartwright, Colleen Maria, et al. "Palliative care and other physicians’ knowledge, attitudes and
practice relating to the law on withholding/withdrawing life-sustaining treatment: survey
results." Palliative medicine 30.2 (2016): 171-179.
Chester v Afshar [2004] UKHL 41, para 18
Children Act 2004
Dawson, John. "A realistic approach to assessing mental health laws' compliance with the
UNCRPD." International Journal of Law and Psychiatry 40 (2015): 70-79.
Donnelly, Mary, and Best Interests. "Patient Participation and the Mental Capacity Act
2005’(2009)." Medical Law Review 17 (2015): 1.
Foster, Charles, and Jonathan Herring. "Rethinking the Welfare and Best Interest
Principles." Altruism, Welfare and the Law. Springer, Cham, 2015. 33-52.

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Gillick v West Norfolk and Wisbech Area health Authority [1986] AC 112; [1985] 3 ALL ER
402
Hall, Mark A., et al. Health care law and ethics. Wolters Kluwer Law & Business, 2018.
Knoppers, Bartha Maria, Yann Joly, and Vasiliki Rahimzadeh. "Introduction." Routledge
Handbook of Medical Law and Ethics. Routledge, 2014. 13-20.
Laurie, Graeme. "The autonomy of others: reflections on the rise and rise of patient choice in
contemporary medical law." First Do No Harm. Routledge, 2016. 147-166.
Mental Capacity Act [2005] (the Act) at section [1(5)]
Re A [2000] 1 FLR
Re A [2000] 1 FLR at 555
Re Burke v General Medical Council and Disability Rights Commission and the Offcial Solicitor
[2004] EWHC 1879
Re F 2 WLR 1025 [1990] 2 AC 1, [1989] 2 WLR 1025, [1989] 2 All ER 545, CA and HL(E)
Re SL (Adult Patient: Medical Treatment) [1992] Oct 12;[1992]4:671-2.
Re W [19992] 4 ALL ER 627
Series, Lucy. "Relationships, autonomy and legal capacity: Mental capacity and support
paradigms." International journal of law and psychiatry 40 (2015): 80-91.
Stauch, Marc. Text, Cases & Materials on Medical Law. Routledge, 2017.

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