en English

Taken from a talk given by Ruth Fletcher on Medical Law in relation to the Bell and Mrs A v Tavistock case.

 

Capacity to consent

To consent to a treatment you have to have the capacity to understand what either having the treatment, or not having the treatment would mean. What would happen, what might happen. What will and won’t happen. Medical law has moved towards assessing someone’s competence to have the capacity to understand enough to consent, as something that is person-specific rather than a generalisation.

The determination was that the court found it highly unlikely that an age group would be able to consent, and this moves away from assessing whether an individual can consent or not in their own right, and is potentially discriminatory. We couldn’t say that all black people, all trans people, all Christians, all gay people, all young people – we should take people as individuals when assessing capacity to consent.

The court determined that it was ‘highly unlikely’, but what does that mean? 51% chance? 99% chance? If it is unlikely that some can understand enough to consent, then it is also likely that some can understand enough.

Capacity to consent is usually decision-specific. In this case, can you show that you can understand enough to give your consent to have puberty blockers? However, the court determined that someone would be effectively consenting to all the stages at once – puberty blockers, hormones, surgery, and this isn’t how traditional medicine operates. We usually consent in stages, with a global understanding of the larger picture. And there will be ‘later moments’ at which point further decisions can be made.

Children and young people are able to consent to their own treatment, and this determination in law also needs to be balanced with that of Gillick and with the law according to the Children Act. A child’s wishes must be taken into consideration and a full welfare assessment made by the doctors and adults who care for them.

 

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