PRESUMING COMPETENCE TO CONSENT:
COULD ANYTHING BE SILLIER?
PDG SKEGG*
I INTRODUCTION
The title of this paper is intentionally provocative.1 A common law presumption of
competence to give, or refuse, consent is commonly traced to a judgment in the English
Court of Appeal in 1992.2 The presumption was accepted and reaffirmed in several later
English cases, with little or no critical assessment by academic lawyers or others. It is by
no means clear when the supposed presumption can be invoked and what difference it
makes. So before it finds more by way of affirmation in Australia and elsewhere, it
warrants much closer scrutiny than it has yet received.
In one sense, the question in the title admits of an easy answer: a wide-ranging
(even if rebuttable) presumption of incompetence to consent would be much sillier than a
wide-ranging (albeit rebuttable) presumption of competence to do so. And a wideranging irrebuttable presumption would be sillier still. But this leaves open the question
of whether an unlimited, or even a somewhat limited, common law presumption of
competence is sometimes, or even always, silly.3
The focus of this article is entirely on the (supposed) common law presumption of
competence. There are various statutory schemes, where a judicial finding of
incompetence can lead to the exercise of guardianship powers over an incapacitated
adult.4 In those contexts, a statutory presumption of competence makes perfect sense. It is
entirely appropriate that the person who alleges incompetence, as the ground for judicial
intervention, should bear the burden of proof.
One issue that will require consideration is whether a common law presumption
operates simply for the purpose of legal proceedings (in which case it is, at least in the
main, unexceptional) or whether it also has a role – and if so, what role – in clinical
practice (and in non-medical contexts).
There is in fact a wide spectrum of possibilities as to what precisely is the effect of
this common law presumption of competence to give or refuse consent. It is far from
certain that the many who accept or even applaud the presumption agree on its possible
*
1
2
3
4
Professor of Law, University of Otago.
This paper was first presented at the TC Beirne School of Law, University of Queensland. I
am most grateful to the School of Law for the invitation and flights and for the
accommodation, meals and conversations that made the visit such a pleasurable one. I am
also grateful to the editor of this journal for permitting me to retain two minor digressions –
one to report the experience of a former student, the other to commend a paper by a former
colleague – in this revised version of the paper. My thanks also go to Professor Ron Paterson
and Mr Simon Currie, who both made helpful comments about an earlier version of this
paper.
In re T (Adult: Refusal of Treatment ) [1993] Fam 95, 112, 115 (per Lord Donaldson MR)
(Eng CA). Strictly speaking, it is the Court of Appeal of England and Wales, dealing with
the law of England and Wales. This article will be expressed in terms of English courts and
English law.
Dickens’ Mr Bumble was speaking of another common law presumption when he famously
said: ‘If the law supposes that, the law is a [sic] ass – a [sic] idiot’. Charles Dickens (‘Boz’),
Oliver Twist, or, The Parish Boy’s Progress (1st ed, 1838) ch 51 (vol 3, 279). (The common
law presumption of coverture was eventually ended, for the purpose of English law, by the
Criminal Justice Act 1925 (UK) s 47).
See, eg, Guardianship and Administration Act 2000 (Qld), discussed in Bucknill v
Guardianship and Administration Tribunal (No 1) [2009] QSC 128.
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effects. For the purpose of this article, there is no need to provide a full taxonomy of the
possibilities. At this stage, at least, it is enough to identify two ends of the spectrum of
possibilities.
At one end of the spectrum (‘Position N’) the common law presumption of
competence is simply another way of indicating that, in any legal proceedings, the
burden of establishing incompetence (where that is a relevant issue) lies on the person
who seeks to assert it.
At the other end of the spectrum (‘Position Z’5) the presumption of competence
warrants a clinician (or anyone else) proceeding on the assumption that a patient (or
anyone else) is competent, in the absence of clear evidence to the contrary. Several other
elements would also be needed to locate a presumption of competence at this very far
end of the spectrum. Evidence that could rebut the presumption would have to relate to
the individual in question, not to any group or category to which that person could be
seen as belonging, or the characteristics of people who sometimes behave as this
individual is behaving. The assessment of competence would be made without taking
account of the individual’s reasons for giving or refusing consent. And the application of
the presumption would not be modified or qualified by any countervailing presumptions
or considerations.
This article is not about the common law, much less statutory, tests for competency.
It is about the supposed basis for a common law presumption of competence, whatever
the criteria for competency in the context and at the time in question. The focus is
especially on the role of such a presumption when it comes to giving or refusing consent
to medical procedures. However, at common law the same principles would seem to
apply in relation to the giving or refusing of consent to all bodily contacts, whether (for
example) of a sexual, sporting,6 or medical nature.
II TERMINOLOGY
Several matters require clarification at the outset.
One is that in this article, as elsewhere, the terms ‘capacity’ and ‘competence’ are
used interchangeably.7 It would be possible to stipulate different meanings for these
terms, but this would now be confusing as they have so often been used as synonyms.
The term ‘capacity’ has probably been used more often in England, ‘competence’ in
America. Given the current dominance of the United States in medico-legal discourse
and biomedical ethics, it is not surprising that the term ‘competence’ is now very
frequently used in (for example) Australia and New Zealand. However, references to
capacity continue to occur in many contexts.
Capacity to consent will here be used to indicate capacity to give legally effective
consent, not merely the ability to express or otherwise indicate what could be taken as
consent. Similarly, capacity to refuse consent will here be used to indicate more than
simply the ability in fact to refuse consent, but (linked to that) the ability in law to make a
refusal that prevents clinicians and others from proceeding as they sometimes can in the
absence of consent, where there is no legally effective refusal of consent.
5
6
7
In choosing a letter 12 away from N in the conventional English alphabet, I do not mean to
imply that there are necessarily 11 other possibilities on the spectrum that ranges from N to
Z.
Some sporting contacts are unusual, from a legal point of view. For example, by taking part
in boxing or a rugby match, the participants can be taken to consent to contacts permitted by
the rules, even while doing their very best to avoid that contact (by, for example, dodging a
punch or tackle).
For the most part, ‘capacity’ will be used in the accounts of, and discussion about, the
English cases where that term was used; ‘competence’ in the remainder of this paper.
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As will become apparent, the concept – indeed, concepts – of competence are by no
means simple or immutable. Except in those cases where an attempt has been made to
define the concept by statute, it is misleading to suggest that there is one fixed set of
criteria. As new circumstances have arisen, courts have identified factors that do, or do
not, undermine a person’s competence to give or refuse consent. This process is likely to
continue.
III THE FONS ET ORIGO: LORD DONALDSON MR IN RE T
A Lord Donaldson MR’s Judgment on Capacity Generally
The judgment of the then Master of the Rolls, Lord Donaldson of Lymington, in the
Court of Appeal in In re T (Adult: Refusal of Treatment)8 (‘Re T’), has some claim to be
the most significant contribution to medical law of any English judgment in the past halfcentury or more. The speeches in the House of Lords in the ‘landmark’ cases of Gillick9
and Bland10 contain much of great value. However, the main thrust of those decisions –
that some children have a common law capacity to consent to medical procedures, and
that it is sometimes lawful to terminate life-support measures even when death is the
inevitable consequence – was already accepted by medical lawyers.11 By way of contrast,
Lord Donaldson’s judgment provided a very significant advance on most previous
accounts of a patient’s capacity to give or refuse consent.12
In the preceding decades, English and other Commonwealth academics who
specialised in the emerging discipline of medical law had focused on capacity to
understand what was involved in a procedure. This, they suggested, was the key to
capacity to consent to it.13 Although the implication was not spelt out, logically it would
seem to follow that a patient with marginal capacity might have the capacity to give or
refuse consent to an easy-to-understand procedure that had massive implications for the
rest of the patient’s life, but lack capacity to consent to a more-difficult-to-understand
procedure that was of much less consequence.
A passage in Lord Donaldson’s judgment in Re T provided a much better approach
to determining competence:14
What matters is that doctors should consider whether at the time [the patient] had a
capacity which was commensurate with the gravity of the decisions which he purported
to take. The more serious the decisions, the greater the capacity required.
Lord Donaldson returned to this theme in the summary at the end of his judgment.
Having pointed out that ‘It may not be a case of capacity or no capacity. It may be a case
8
9
10
11
12
13
14
[1993] Fam 95 (Eng CA).
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL).
Airedale NHS Trust v Bland [1993] AC 789 (HL).
See, eg, PDG Skegg, Law, Ethics, and Medicine: Studies in Medical Law (1984) ch 3, 7 and
8.
The judgments in Re T contained much of importance in addition to the matters mentioned
here. For a helpful analysis, see A G[rubb], ‘Treatment Without Consent’ [1993] Medical
Law Review 83-87.
Capacity to communicate was, for the most part, taken for granted. Capacity to refuse
consent was commonly assumed to be identical with capacity to give consent.
[1993] Fam 13B.
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of reduced capacity’,15 he continued (in the context of this case dealing with a refusal of
consent):16
What matters is whether at that time [ie at the time of the refusal] the patient’s capacity
was reduced below the level needed in the case of a refusal of that importance, for
refusals can vary in importance. Some may involve a risk of life or irreparable damage
to health. Others may not.
This flexible approach is consistent with that adopted in some other legal
contexts.17 It is much superior to a simplistic ‘competent, yes or no’ approach which has
so often featured in medical assessments and publications. It does, however, provide
room for a good deal of debate: the importance of a decision may be assessed by
different people in different ways. Nevertheless, most would agree that the refusal of
treatment that would prolong life for years, even decades, is much more significant than
the refusal of treatment that is unlikely to prolong life for more than a month or two.
On Lord Donaldson MR’s approach, there could be circumstances in which a
person had capacity to consent (to, say, life-support that will prolong life by one day in
the first instance), but lack capacity to refuse consent to the same measure, where that
would result in death occurring almost immediately, decades earlier than would be likely
if life-support was maintained for the time being.
B Lord Donaldson MR and a Presumption of Capacity
Lord Donaldson’s much-cited comments about a presumption of capacity were a
relatively minor aspect of his judgment in Re T: less than 150 words in the judgment of
more than 11,500 words that he delivered less than a week after the conclusion of a three
day hearing.18
Lord Donaldson prefaced the passage in his judgment headed ‘Capacity to decide’
with the following two sentences: ‘The right to decide one’s fate presupposes a capacity
to do so. Every adult is presumed to have that capacity, but it is a presumption which can
be rebutted’.19 That was all that he said about the presumption until the later part of his
judgment, headed ‘Summary’.
Lord Donaldson commenced the part headed ‘Summary’ with a statement, the first
two words of which can be viewed as alluding to his newly-asserted presumption. ‘Prima
facie’, he said, ‘every adult has the right and capacity to decide whether or not he will
accept medical treatment, even if the refusal may risk permanent injury to his health or
15
16
17
18
19
Ibid, 116A.
Ibid, 116A-B.
See, eg, In re Beaney (deceased) [1978] 1 WLR 770, 774: ‘The degree or extent of
understanding required in respect of any instrument is relative to the particular transaction
which it is to effect. … In the case of … a gift inter vivos … the degree varies with the
circumstances of the transaction. Thus … if the subject matter and value of the gift are trivial
in relation to the donor’s other assets a low degree of understanding will suffice. But … if its
effect is to dispose of the donor’s only asset of value … then the degree of understanding
required is as high as that required for a will’. For an Australian medical law case which
makes much the same point, see Hunter and New England Area Health Service v A (2009)
74 NSWLR 88, [24]: ‘The capacity required to make a contract to buy a cup of coffee may
be present when the capacity to decide to give away one’s fortune is not’.
The appeal was heard from Wednesday 22 July to Friday 24 July 1992. The judgments were
delivered on Thursday 30 July, and an internet search indicates that all three judges sat on
other appeals earlier that week.
[1993] Fam 112G.
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Presuming Competence to Consent
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even lead to premature death’.20 The paragraph ended with Lord Donaldson making it
clear that the presumption did not apply to minors and could be rebutted. As he put it,
‘the presumption of capacity to decide, which stems from the fact that the patient is an
adult, is rebuttable’.21
These few sentences, unaccompanied by any citations, provide the judicial
foundation for the English common law presumption of capacity to give or refuse
consent.22 There was no direct reference to the presumption in the judgments of Lord
Donaldson’s colleagues.23
There are other areas of English law that could long have been expressed in terms
of a presumption of capacity (or its synonym, competence).24 However, somewhat
surprisingly, a search of the law reports suggests that such an expression had hardly ever
been used in judgments prior to that of Lord Donaldson in Re T.25 It is not clear why
20
21
22
23
24
25
[1993] Fam 115F. Italics mine (for emphasis, rather than to indicate a language other than
English).
[1993] Fam 115G.
On 14 February 1992, a few months before the decisions in Re T (see above n 8), a judgment
of the Ontario Court of Appeal spoke of a ‘common law presumption of competence’ upon
which the attending physician is entitled to rely in the course of his or her dealings with a cooperative patient’. (No cases, or other sources, were cited in connection with this statement.)
A few lines later, the judgment went on to indicate that ‘the physician is under a duty to
remain alert to signs of incompetence, even in a patient who is willing to be treated’: Khan v
St Thomas Psychiatric Hospital (1992) 87 DLR (4th) 289, 298-9. This case has not been
cited in, or it seems had any influence upon, any of the English and Australian judgments
examined or cited in this article. Indeed, it has hardly ever been cited in reported or traceable
judgments of a Canadian court, and never on the presumption of competence point.
Butler-Sloss LJ and Staughton LJ both delivered substantial judgments. Butler-Sloss LJ
mentioned that she had read Lord Donaldson’s judgment in draft, and early in her own said
‘I respectfully agree with the general propositions of law which he lays down’ ([1993] Fam
116F). However, Lord Donaldson’s few lines about a presumption of capacity were such a
small part of his account of the law that it would be a mistake to read a great deal into
Butler-Sloss LJ’s statement on that occasion. But see her judgments reviewed later in this
article, especially Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449.
One obvious example is what has long been, at least in effect, a presumption of testamentary
capacity – whereby the onus is on the person who wishes to challenge the testator’s capacity.
But see Bratty v Attorney General for Northern Ireland [1963] AC 386, 407, 413 (HL)
(‘presumption of mental capacity’); Lalchan Nanan v The State [1986] AC 860, 869 (PC)
(reference to Kelsick JA’s conclusion that there was no admissible evidence which rebutted
‘the presumption of competence or assent of any of the jurors’). Although the final appeal in
each of these cases was heard in London, neither was an English case. Lord Donaldson’s
choice of terminology in Re T may have been influenced by that apparently used by counsel in
an appeal on which he sat a few weeks earlier: see In re W (A Minor)(Medical Treatment:
Court’s Jurisdiction) [1993] Fam 64, 71B, 75G, 77A. Another (perhaps remoter) possibility
was that Lord Donaldson was influenced by a passage in the judgment of the Supreme Court of
New Jersey in In re Conroy (1985) 486 A.2d 1209. The New Jersey court had quoted (ibid,
1241) a passage from an article by a prominent American bioethicist, Robert Veatch, in which
he said that ‘one cannot simply presume that a patient is incompetent’ and that there must be
‘some sort of due process’ and that ‘if the patient has not been adjudicated to be incompetent,
he must be treated as … competent’. The passage quoted in In re Conroy is the closest –
indeed, only – one with any possible bearing on Lord Donaldson’s presumption of capacity, to
be found in any of ten cases referred to in the judgments in Re T, the nine other cases that were
cited in argument but not in the judgments in Re T, or the 22 cases (in addition to In re Conroy)
that were referred to in the skeleton arguments in Re T, but were not cited by counsel at the
hearing. For recent references to a presumption of capacity in other contexts, see, eg, Thorpe v
Fellowes Solicitors LLP [2011] EWHC 61 (QB), [75] (presumption of capacity to contract);
Dunhill v Burgin [2011] EWHC 464 (QB), [42], [84], [95], [96] (presumption of capacity to
enter into a compromise agreement in a personal injury damages claim).
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Lord Donaldson decided to use this formulation: it had not occurred in the judgment that
was the subject of appeal,26 or in the submissions.27
Lord Donaldson undoubtedly expressed the view that there is a rebuttable
presumption that an adult (‘by virtue of being an adult’) has the capacity to decide
whether to give or refuse consent to medical treatment – even if the refusal may risk
permanent injury to his health or lead to premature death. Viewed in isolation, this could
be viewed as increasing – if only to a limited extent – the circumstances in which people
of uncertain and perhaps marginal capacity could be judged capable of giving or
withholding consent.
In the case of decisions of relatively little importance, this could well be so.
However, when one takes account of Lord Donaldson’s helpful insistence that ‘The more
serious the decision, the greater the capacity required’,28 his judgment has the effect of
raising the bar in cases where the refusal may involve ‘a risk to life or irreparable damage
to health’.29 So what this judgment seems to give with one hand, it could be seen as
taking away with the other.
Lord Donaldson did not suggest that, in the absence of some indication to the
contrary, clinicians may always rely on a presumption of capacity. Far from it. He said:
‘Doctors faced with a refusal of consent have to give very careful and detailed
consideration to the patient’s capacity to decide at the time when the decision was
made’.30 This statement must, of course, be viewed in the context of the case before him.
It involved the purported refusal of a potentially life-saving intervention, by a patient
who had since become unconscious.
There will be a great many cases where the refusal of proffered treatment will be of
little consequence, and others where the same treatment will be provided to the patient
whether or not the (compliant) patient has the current capacity to consent to it.31 In such
cases, ‘very careful and detailed consideration’ of the patient’s capacity will rarely be
appropriate. In the absence of any indication to the contrary, capacity can often be
assumed. Nevertheless, it is worth stressing that, despite Lord Donaldson’s references or
allusions to a presumption of capacity, he was clearly of the view that, where a decision
is a significant one, clinicians must give ‘careful and detailed consideration’ to the issue
of capacity. There was no suggestion that clinicians could simply rely on a presumption
of capacity in such cases.
It might be thought that the presumption of capacity could still have some role to
play, where clinicians were unable to decide whether or not the patient had the capacity
required for a decision of that importance.32 But Lord Donaldson did not suggest that,
even then, clinicians should always simply presume capacity. He said:33
If in a potentially life threatening situation or one in which irreparable damage to the
patient’s health is to be anticipated, doctors or hospital authorities are faced with a
26
27
28
29
30
31
32
33
Lord Donaldson’s judgment in Re T contained extensive quotations from those of Ward J at
first instance (106-110). Ward J had said that he instinctively disliked introducing
presumptions in reaching a decision about a crucial fact (108F) and seems to have made no
reference to a presumption of capacity or competence.
For the submissions, see [1993] Fam 98-101.
[1993] Fam 95, 113B.
[1993] Fam 116A.
Ibid, 113A.
As Staughton LJ pointed out in Re T, sometimes ‘the surgeon may lawfully operate, in the
knowledge that he can be justified either by consent or by the principle of necessity,
whichever is in fact applicable’. [1993] Fam 122B-C.
See R (on the application of B) v Dr SS [2005] EWHC 86 (Admin), [86] and [89] (per Silber
J).
[1993] Fam 115D-E.
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refusal by an adult patient to accept essential treatment and they have real doubts as to
the validity of that refusal, they should … at once seek a declaration from the courts as
to whether the proposed treatment would or would not be lawful.
The court’s decision about whether the patient had the capacity to make a decision
of that importance would be an essential element in that declaration. Of course, a
presumption of capacity could still have some role to play, if the court was itself unable
to reach a decision either way.34 However, in practice courts are able to make such
decisions, and the outcome would be the same if the court simply relied on the general
law about burden of proof.
Lord Donaldson’s few lines about a presumption of capacity provide a fairly
limited and shaky judicial basis for a common law presumption of capacity to give or
refuse consent. Furthermore, the first of them followed immediately after a paragraph in
which Lord Donaldson said that, in case of doubt, that doubt falls to be resolved in
favour of the preservation of life.35 That countervailing consideration could sometimes
reduce, even override, the role of a presumption of capacity.
Viewed in isolation, Lord Donaldson’s proffered presumption could be seen as
enlarging, if only in marginal cases, the circumstances in which an adult patient can give
a legally effective consent, or a legally effective refusal of consent. However, given Lord
Donaldson’s exposition of the related principles about capacity, it is doubtful that it has
this effect. While one strand of his judgment can be viewed as having lowered the bar a
little, where nothing much was at stake, his judgment undoubtedly raised the bar where
the treatment decision was of great significance. It would, in any case, be ironic if Lord
Donaldson were viewed as a particular champion of the patient’s right to decide: of the
four judges involved in the Re T litigation, he was the only one who was clearly of the
view that the patient was incapable of refusing consent.36
IV LATER CASES IN THE ENGLISH COURT OF APPEAL
In Re T, Lord Donaldson MR was the one judge who made express reference to a
presumption of capacity.37 The Court of Appeal next touched upon the matter nearly five
years later, in In re MB (An Adult: Medical Treatment)38 (‘Re MB’). On this occasion, the
single judgment of the Court of Appeal accepted (and, on the face of it, expanded) Lord
Donaldson MR’s presumption of capacity.
Re MB involved a case of needle phobia, which prevented a pregnant woman (‘aged
about 23’) from consenting to the taking of blood samples, or to an injection to
administer the anaesthetic that was a necessary prelude to a Caesarean section. There was
no suggestion that the woman did not understand what was involved, but in the court’s
view the phobia rendered her incompetent to make a legally effective refusal of consent.
This was a consequence of the court’s acceptance of the view that capacity does not
merely require the ability to comprehend and retain the crucial (‘material’) information
34
35
36
37
38
See R (on the application of B) v Dr SS [2005] EWHC 86 (Admin), [86] and [89] (per Silber
J).
[1993] Fam 112F.
At first instance, Ward J had found that T ‘had the capacity to decide for herself’: [1993]
Fam 107E. In the Court of Appeal, Butler-Sloss LJ did not seek to upset Ward J’s finding,
although she did say that on the evidence she would not have been surprised by a contrary
finding: [1993] Fam 118A.
But see above n 23.
[1997] 2 FCR 541, [1997] 8 Med LR 217. As neither report is widely available, passages
will be identified here by reference to the paragraph numbers that appear in the transcript on
the BAILII database, citation number [1997] EWCA Civ 3093.
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but, in addition, the ability to ‘use the information and weigh it in the balance as part of
the process of arriving at the decision’.39 This, the court held, was lacking with the
patient in question. The Court of Appeal upheld the trial judge’s declaration that it was
lawful for the consultant gynaecologist to operate on the woman without her consent.
In setting out the ‘basic principles’, the judgment of the court40 quoted passages
from Lord Donaldson MR’s judgment in Re T, both as to there being a rebuttable
presumption that an adult is capable, and also that there is a need for a capacity that is
‘commensurate with the gravity of the decision’ that the adult purports to make.41
Later in its judgment, the court expressed the law in the following terms: ‘Every
person is presumed to have the capacity to consent unless and until the presumption is
rebutted’.42 There was, however, nothing to indicate that the court had turned its mind to
the application of the presumption to minors. Had it done so, the speeches in the House
of Lords in Gillick43 would have required consideration. These speeches provide no
support whatever for presuming the competence of minors, and Lord Scarman’s
emphasised the need for doctors to assess the particular child’s capacity.44 When it comes
to the broad terms (‘Every person’) in which the court in Re MB expressed the
presumption, Lord Hoffmann’s warning is apposite: ‘The remarks of judges, however
general, have to be read in context’.45
The presumption of capacity did not play a significant part in the decision-making
in Re MB. Given the court’s holding that capacity requires not merely the ability to
understand and retain the relevant information, but also the ability to use it in coming to a
decision, Re MB can be seen as the Court of Appeal confirming the raising, rather than
the lowering, of the common law threshold for capacity to give or refuse consent. In this,
as in some other respects, it has a good deal in common with Re T.
The following year, the Court of Appeal dealt with another case – St George’s
Healthcare NHS Trust v S46 – in which reference to the presumption could have been
expected. The case concerned an adult woman who was putting her own (and her unborn
child’s) life at risk by her refusal of treatment for pre-eclampsia. The court47 provided a
set of guidelines at the end of its judgment. Most unusually, after receiving further
submissions, it substituted a replacement set of guidelines twelve weeks’ later. These are
the ones that appear in the reports. The court said that the guidelines were ‘to repeat and
expand’ the advice given in Re MB.48
The Court of Appeal advised that a health authority should identify ‘as soon as
possible’ whether ‘there is concern’ about a patient’s competence to give or refuse
consent to treatment.49 It continued: ‘If the capacity of the patient is seriously in doubt it
should be assessed as a matter of priority’.50 Far from advocating reliance on a
presumption of capacity, the guidelines stated that in ‘serious or complex cases involving
difficult issues about the future health and well-being or even the life of the patient’ the
39
40
41
42
43
44
45
46
47
48
49
50
Para 30.4.
The judgment of the Court of Appeal was delivered by Butler Sloss LJ. The other members of
the court were Ward LJ (who had sat at first instance in Re T) and Saville LJ.
Para 18.
Para 30.1. Emphasis added.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL).
See [1986] AC at 189 (per Lord Scarman).
Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, [52].
[1999] Fam 26.
The court was a strong one, comprising as it did Butler-Sloss LJ (later President of the
Family Division), Judge LJ (now Lord Chief Justice of England) and Robert Walker LJ
(later a Law Lord and now a Justice of the Supreme Court of the United Kingdom).
[1999] Fam 63C.
Ibid, 63H.
Ibid, 63H.
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issue of capacity should be examined by an independent psychiatrist.51 If, following this
assessment, there remained ‘a serious doubt about the patient’s competence’ the
guidelines indicated that ‘the seriousness or complexity of the issues in the particular
case may require the involvement of the court’.52
Further detail followed, but nowhere in the guidelines (or elsewhere in the
judgment) was there any mention of, or implication about, a presumption of capacity or
competence (words that were used interchangeably in the guidelines). This is not to
suggest that the Court of Appeal was rejecting what Lord Donaldson MR had said in Re
T, or what was said in the judgment of the court in Re MB: simply that any such
presumption is of little consequence where there are serious doubt about a patient’s
capacity to make an important decision.
The judgment in St George’s Healthcare NHS Trust v S concluded with the
following sentence: ‘Where delay may itself cause serious damage to the patient’s health
or put her life at risk then formulaic compliance with these guidelines would be
inappropriate’.53 So even if the guidelines had included some reference to a presumption
of competence, its application could sometimes have been affected by this countervailing
consideration.
There are no later English Court of Appeal decisions which throw any light on a
common law presumption of competence to consent, or refuse consent, to medical
treatment or to other bodily touchings.54
V OTHER ENGLISH CASES
A The Most Important Two Decisions
In the years between the decision of the English Court of Appeal in Re T and the
coming into force of the Mental Capacity Act 2005 (which put much of this area of
English law on a statutory footing) there were a good many cases in which issues of
capacity to give or refuse consent received attention in other English courts. However,
only very occasionally was there any mention of a common law presumption of
competence.
The most important of these cases was Re B (Adult: Refusal of Medical
Treatment)55 (‘Re B’) which came before the Family Division of the High Court almost a
decade after Lord Donaldson MR’s much-cited judgment in Re T.56 The judge in Re B
was Dame Elizabeth Butler-Sloss, who by then was President of the Family Division. As
Butler-Sloss LJ she had been the one judge who had sat on all three of the Court of
Appeal cases mentioned above. In Re B, she repaired the omission of any mention of the
presumption in the guidelines that the Court of Appeal had eventually provided in St
George’s Healthcare NHS Trust v S.
Re B concerned a 43 year old woman who had become tetraplegic and who wanted
doctors to terminate the artificial ventilation that was keeping her alive. The main issue
before the court was her capacity to make such a decision. Despite the judgment’s
occasional references to a presumption of capacity,57 the presumption does not appear to
51
52
53
54
55
56
57
Ibid, 64A.
Ibid, 64A-B.
Ibid, 65B.
But note Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 (Eng CA),
(presumption of capacity to litigate).
[2002] 2 All ER 449.
The judgments in Re T were delivered on 30 July 1992; Re B was heard on 6-8 March 2002,
(judgment delivered on 22 March 2002).
In addition to [100], quoted in part below, see also [28] and [89].
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have played any part in the eventual decision of the court. It was on the basis of the
evidence that the Butler-Sloss P was ‘entirely satisfied’ that Ms B was competent to
make all relevant decisions about her medical treatment, including the decision whether
to seek to withdraw from artificial ventilation.58 Butler-Sloss P found the patient’s mental
competence to be ‘commensurate with the gravity of the decision she may wish to
make’.59
In the concluding part of her judgment, headed ‘Guidance’, Butler-Sloss P restated
‘some basic principles’ and offered ‘additional guidelines’.60 This commenced with the
statement (missing in St George’s Healthcare NHS Trust v S) that: ‘There is a
presumption that a patient has the mental capacity to make decisions whether to consent
to or refuse medical or surgical treatment offered to him/her’.61
There was, however, no suggestion that in cases of doubt doctors could simply rely
on the presumption. Butler-Sloss P went on to state that: ‘If there is concern or doubt
about the mental capacity of the patient, that doubt should be resolved as soon as
possible, by doctors within the hospital or NHS Trust or by other normal medical
procedures’.62 Very helpfully, she immediately went on to say that: ‘In the meantime,
while the question of capacity is being resolved, the patient must, of course, be cared for
in accordance with the judgment of the doctors as to the patient’s best interests’.63
In other words, rather than suggest that clinicians rely on the presumption of
competence in such circumstances, Butler-Sloss P made it clear that a patient’s lifesupport (or other treatment) should continue until the question of the patient’s capacity to
refuse treatment was determined. In effect, Butler-Sloss P was foreshadowing the
provision of a new common law justification for treatment without consent, to apply in
some circumstances where there is uncertainty whether or not the patient is competent.
This new justification will supplement that already provided at common law where the
patient is without doubt incompetent.64 It will apply even if it eventually becomes
apparent that the patient was competent at the time treatment was provided.65
Butler-Sloss P envisaged the patient being a participant in the process whereby, in
cases of doubt, extra steps are needed to determine competence.66 But she went on to
make it clear that, in the last resort ‘the NHS Hospital Trust should not hesitate to make
an application to the High Court or seek the advice of the Official Solicitor’.67
Re B can be seen to have reinstated the common law presumption of competence to
the position it occupied immediately following the judgment of the Court of Appeal in Re
MB. However, there was not the least suggestion that clinicians could rely on the
presumption where there was uncertainty or doubt about the patient’s competence.
Prior to Re B there had been only one Family Division decision with a bearing on
the presumption. This was Re C (Adult: Refusal of Treatment)68 (‘Re C’), which was
58
59
60
61
62
63
64
65
66
67
68
Para 95.
Ibid.
Para 100.
Para 100 (i).
Para 100 (iii).
Para 100 (iv). On this matter, note para 87 (account of counsel’s submission), and also St
George’s Healthcare NHS Trust v S [1999] Fam 26, 65B (Eng CA).
In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, esp 74-78.
As with cases of short-term incompetence, it would seem obvious that doctors should not
proceed with treatment that could reasonably be deferred.
Para 100 (vi).
Para 100 (ix). This statement was not made with exclusive reference (or, indeed, with any
express reference) to the issues of determining competence. But note [35], where ButlerSloss P said, ‘To resolve disputed issues of capacity, as a last resort, there may have to be an
application to the High Court for guidance’.
[1994] 1 WLR 290.
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decided after Re T but before Re MB. It merits mention here because it was the first case
in which Lord Donaldson MR’s comments about the presumption were cited, and it
remains the only one in which the common law presumption might have affected the
outcome.
C suffered from chronic paranoid schizophrenia, with associated grandiose
delusions. Thorpe J accepted that C (here the plaintiff) was capable in law of making an
anticipatory refusal of consent to any proposed amputation of his gangrenous leg. Re C
can therefore be viewed as a welcome demonstration of the fact that a person may have a
serious mental illness but still be capable of consenting, or refusing to consent, to
medical treatment.
Were they better known, C’s solicitor’s subsequent comments about C’s mental
capacity might remove any undue complacency about Thorpe J’s decision on the facts of
this case. After the court case had concluded, she suggested to C that he make a will. He
agreed and asked her to draft a will in which he would be the sole beneficiary – as he
wanted to take all his money with him. She commented: ‘I did not need the help of a
doctor to work out that he lacked capacity to make a will’.69
In his judgment in Re C, Thorpe J quoted the ‘helpful summary’ provided by Lord
Donaldson MR in Re T, including what Lord Donaldson had said about the rebuttable
presumption that an adult is capable of deciding whether or not to accept treatment.70
Thorpe J went on to say: ‘I think that the question to be decided is whether it has been
established that C’s capacity is so reduced by his chronic mental illness that he does not
sufficiently understand the nature, purpose and effects of the proffered amputation’.71
Although Thorpe J did not make express reference to a presumption of capacity at this
point, the need to rebut such a presumption can be seen as underlying that statement.
Ultimately it was not for C (here as plaintiff) to prove that he was competent. In the
context of this case, at least, it was for those who wished to challenge C’s capacity to
convince the court that he was not capable.72
A presumption of capacity can also be seen as underlying Thorpe J’s further
statement in Re C that ‘I am completely satisfied that the presumption that C has the right
of self-determination has not been displaced’.73 This sentence is the only one, in any
traceable English medical law judgment, in which the presumption seems to be a crucial
element in the judge’s decision. However, its importance is greatly diminished by the
fact that the judge immediately went on to indicate that he was satisfied that the plaintiff
did in fact have sufficient capacity to make the anticipatory refusal of consent.74 So his
application (in effect) of the presumption of capacity did not alter the outcome in this
case.
Insofar as the presumption of capacity played a role in this case, it was in the
context of a judicial determination. There was no suggestion that, when faced with a
69
70
71
72
73
74
Lucy Scott-Moncrieff, ‘Capacity Choice and Compulsion’ (2004) 11 Journal of Mental
Health Law 142, 143. The incident led her to doubt whether C ‘actually had the capacity to
make the decision about his treatment’. She said that C’s response to her proposal showed
that ‘he did not accept the finality of death or, at least, the inevitable loss of the ability to
spend money that accompanies death’.
[1994] 1 WLR at 294.
Ibid, 295C. Emphasis added.
But note Lindsay v Wood [2006] EWHC 2895 (QB), [4] (per Stanley Burnton J): capacity to
litigate, where there was doubt about capacity but neither party asserted incapacity; ‘in cases
such as the present … consideration should be given to seeking an order of the court directing
the Official Solicitor to consider the evidence, to appoint his own medical expert if he sees fit,
and to appear and to make such submissions as he considers appropriate on the hearing on the
issue’.
[1994] 1 WLR at 295D.
[1994] 1 WLR at 295E.
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patient like C, clinicians could – much less should – avoid assessing the patient’s
capacity by proceeding on the basis of a presumption of capacity.
B Two Other Cases
There are two other English cases which warrant mention here.75 The first is HE v A
Hospital NHS Trust,76 which came before the Family Division the year after Re B. It
concerned an advance directive made by a now unconscious patient. As required by the
judgment of the Court of Appeal in Re MB,77 Munby J accepted that an adult is presumed
to have capacity.78 But he went on to say that ‘although the burden of proof on the issue
of capacity is on those who seek to dispute it, the burden of proof is otherwise on those
who seek to establish the existence and continuing validity and applicability of an
advance directive’.79 In words that were very similar indeed to those used by Lord
Donaldson MR in Re T,80 Munby J also said that ‘if there is doubt that doubt falls to be
resolved in favour of the preservation of life’.81
Munby J insisted that clear and convincing proof is required.82 He said that ‘the
more extreme the gravity of the matter in issue so, as it seems to me, the stronger and
more cogent must the evidence be’.83 He continued: ‘Where, as here, life is at stake, the
evidence must be scrutinised with especial care. The continuing validity and applicability
of the advance directive must be clearly established by convincing and inherently reliable
evidence’.84
So this judgment has something in common with that of Lord Donaldson MR in Re
T and that of Court of Appeal in Re MB: it accepts a presumption of capacity but contains
other elements that narrow, rather than extend, the circumstances in which a clinician or
court can rely on the patient’s expressed wishes.
NHS Trust v T (adult patient: refusal of medical treatment)85 is another medical law
case in which a judge of the Family Division made express reference to a common law
presumption of capacity. Ms T suffered from a borderline personality disorder and had a
long history of contact with psychiatric services. She had signed an advance directive, in
effect refusing consent to a blood transfusion should one be required again following her
recurrent self-harming. In that document she spelt out her two reasons. First, that she was
‘caught in a vicious circle/set of circumstances too difficult for me to continue enduring’.
And secondly ‘I believe my blood is evil, carrying evil around my body. Although the
blood given in transfusions is perfectly healthy/clean once given to me it mixes with my
own and also becomes evil. Contaminated by my own. Therefore the volume of evil
75
76
77
78
79
80
81
82
83
84
85
Note also Re Z (Local Authority: Duty) [2005] 3 All ER 280, [13] (per Hedley J); R (on the
application of B) v Dr SS [2005] EWHC 86 (Admin), [86] and [89] (per Silber J) both cited
elsewhere in this article.
[2003] EWHC 1017 (Fam).
See above n 38.
Para 20 (iii).
Para 23.
In re T (Adult: Refusal of Treatment ) [1993] Fam 95, 112F.
Para 23. Note also R (Burke) v General Medical Council [2005] QB 424 where, in a somewhat
different context, Munby J twice spoke of ‘the very strong presumption in favour of taking all
steps which will prolong life’ ([100] and [116]). He also said that ‘In case of doubt that doubt
falls to be resolved in favour of the preservation of life’ (para 116). For the Court of Appeal’s
lack of objection to this presumption, and to Munby J’s view on how to proceed in case of
doubt, see R (Burke) v GMC [2006] QB 273, [61]-[62].
Para 24.
Ibid.
Ibid.
[2005] 1 All ER 387.
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blood in my body will have increased and likewise the danger of my committing acts of
evil’.
It is sometimes suggested that, when determining capacity, a patient’s reasons for
giving or refusing consent should be set aside.86 But in the case of Ms T (as in more than
a few other circumstances), that would have been absurd.87
There was conflicting psychiatric evidence about Ms T’s capacity, or lack thereof.
Charles J reminded himself ‘of the presumption that Ms T has capacity’,88 before going
on to make his own assessment of the evidence. Ms T’s view that her blood was evil
clearly weighed with Charles J, and was a factor in his conclusion that ‘Ms T lacks
capacity and lacked capacity when she signed the advance directive’.89 Given the conflict
of psychiatric testimony in this case, a weighty presumption of capacity could have led
him to the opposite conclusion. But despite making express reference to the presumption,
Charles J (like other judges before him) made his own assessment of the evidence in the
way that would have been expected were there no such presumption.
VI MUCH ADO ABOUT VERY LITTLE?
Despite the frequent references to the presumption of capacity in medical law texts
and elsewhere, there do not appear to have been any English medical law cases in which
the common law presumption of capacity led to patients being regarded as competent
when, but for that presumption, they would have been regarded as incompetent.
The English cases which have referred to a presumption of capacity have often been
ones which had the effect of making it easier, rather than harder, to set aside a patient’s
expressed wishes – either because the matter was one of particular significance, for
which a correspondingly high level of competence was required,90 or else because of
stringent requirements relating to advance directives.91
Presumptions have their main role in legal proceedings, and insofar as judges have
made reference to a presumption when discussing a patient’s capacity to consent or
refuse consent, it has (as would be expected) been in such a context. The English judges
have not suggested that the presumption obviates the need for the parties to lead evidence
about capacity, where there is doubt about it.
The role of the presumption of competence can be understood by reference to the
best known and most firmly established of all presumptions: the presumption of
innocence. The fact that, in criminal proceedings, the accused is to be presumed innocent
until the contrary is proved, has not been seen as a reason why police should assume
86
87
88
89
90
91
But note In re T (Adult: Refusal of Treatment) [1993] Fam 95, 113D (per Lord Donaldson
MR) (Eng CA): ‘That his choice is contrary to what is to be expected of the vast majority of
adults is only relevant if there are other reasons for doubting his capacity to decide. The
nature of his choice or the terms in which it is expressed may then tip the balance’. The fact
that in In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 the patient’s reason for
opposing amputation were by no means bizarre – ‘He said he would rather die with two feet
than live with one’ (ibid, 291F) – may in practice have had some bearing on the judge’s
finding in that case.
While seemingly irrational reasons should not, on their own, be treated as conclusive
evidence of incapacity, they will sometimes point to an underlying condition that is highly
relevant to an assessment of capacity. (This matter deserves much fuller examination, and
citation, than is appropriate here.)
Para 60.
Para 62.
In re T (Adult: Refusal of Treatment) [1993] Fam 95 (Eng CA); In re MB (An Adult: Medical
Treatment) [1997] 2 FCR 541, [1997] 8 Med LR 217 (Eng CA).
HE v A Hospital NHS Trust [2003] Fam 733.
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innocence. Their work often involves their making their own, albeit provisional,
assessment of the guilt or innocence of a great number of people. Similarly, in at least
some respects, a presumption of competence should not be taken to release clinicians
from the task of seeking to ascertain competence, when the circumstances warrant it. The
English judgments examined here do not contain any suggestion that, where capacity is
in doubt, practitioners should simply rely on the presumption and proceed on the basis
that the patient is competent. To the contrary, judges have sometimes emphasised the
importance of the practitioners seeking to assess competence.
English case law does not encourage practitioners to cease providing lifeprolonging treatment whenever patients have refused consent to it, and the practitioners
do not know whether or not the patient is competent to make a legally binding decision
about further treatment. Judgments have sometimes supported what is in effect a
presumption in favour of the preservation of life.92 And the case that gave renewed
emphasis to the presumption of competence also contained one very important
indication.93 This was that, even if it eventually becomes apparent that the patient was
fully competent when refusing consent to the treatment, the courts will provide clinicians
with a legal justification if they maintain life-prolonging treatment while taking steps to
determine a patient’s competence.94
VII EXTRAVAGANT CLAIMS ABOUT THE PRESUMPTION
Extravagant claims have been made about the presumption of competence.
Unsurprisingly, given current emphases in bioethics and health law, it has been said that
respect for patient autonomy requires the presumption.95 It has also been claimed that a
presumption of competence is a basic human right.96 Both of these claims are open to
question.
Even if autonomy were to be viewed as a value that should always trump all others
– an implausible proposition – it is difficult to see how it is furthered by treating people
as acting autonomously, when it is uncertain whether they have the capacity to make an
autonomous decision. Indeed, if autonomy is to be more than a popular shibboleth, it is
especially important to determine whether a person’s expressed wishes represent that
person’s autonomous choice. One essential element in any such assessment involves
ensuring that the person was sufficiently competent to make the decision at the relevant
time. It is often convenient, even necessary, to assume competence, but a person’s
autonomy is not furthered if choices that were not made autonomously (either because of
incompetence or the surrounding circumstances) are treated as if they were.
Like the invocation of autonomy, framing claims or assertions as ones about human
rights is also characteristic of a good deal of discussion in modern medical law. In that
context, as in so many others, framing debate in these terms has often generated more
heat than light.
The claim that a presumption of competence is a basic human right would be more
convincing if it could be explained why what may, in fact, be people’s non-autonomous
or incompetent (apparent) ‘choices’, should be given the same weight as their
autonomous ones. In practice, there are many circumstances where competence must be
92
93
94
95
96
In re T (Adult: Refusal of Treatment ) [1993] Fam 95, 112F (per Lord Donaldson MR) (Eng
CA); HE v A Hospital NHS Trust [2003] Fam 733, [23] (per Munby J). Note also St
George’s Healthcare NHS Trust v S [1999] Fam 26, 65B (Eng CA).
Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449, discussed above.
Ibid, para 100 (iv), per Butler-Sloss P.
See, eg, Mary Donnelly, Healthcare Decision-Making and the Law (2010) 93.
See, eg, Denys Court, ‘Mental Disorder and Human Rights: The Importance of a
Presumption of Competence’ (1996) 8 Auckland University Law Review 1, 24.
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assumed: life is too short to be forever pausing to assess competence. However, if the
matter is a very significant one (such as the offer to act as a ‘living donor’ of a kidney, or
to refuse life-saving treatment) there is often good reason to seek to check that someone
is competent, rather than simply assume that they are. And where there is uncertainty
about someone’s competence, it is often desirable to seek to determine competence,
rather than presume competence. It is difficult to identify a ‘fundamental human right’
that is infringed when this is done.
I very much hope that I am never rushed to an emergency department, having
written a ‘do not treat’ advance directive and then taken an overdose, in an attempt to kill
myself. But if that were to occur, I believe my interests (or, as some would put it, ‘human
rights’) would be best furthered by clinicians seeking to assess whether I was competent
at the relevant times, rather than simply presuming competence. Indeed, in these
particular circumstances, I very much hope that they will – in the absence of very clear
evidence to the contrary – presume incompetence. I do not believe my autonomy and
human rights would be infringed by such an approach: quite the reverse. They would be
giving me the chance to make what, in all probability, would be a much more competent
and autonomous decision.
VIII IS IT ALWAYS ETHICAL?
The ethical appropriateness of relying on a presumption of competence seems never
to have been questioned. However, away from legal proceedings, reliance on a strong
presumption of competence could lead to highly questionable outcomes.
Consider a proposal to use ‘intellectually handicapped’ people as sources of tissue
for transplantation, or as research subjects, in circumstances dependent upon their having
given legally effective consent. To proceed on the basis of a presumption of competence,
obtaining (apparent) consent without taking any steps to determine their actual
competence, would be less than satisfactory. Respect for people’s autonomy and human
rights (if one wishes to frame the issue in those terms) does not require acting on the
presumption, rather than taking steps to determine whether these potential ‘donors’, or
research subjects, had sufficient competence.
Those who have sexual intercourse with intoxicated people have long benefited
from what is tantamount to a strong presumption of competence. Even if the prime
mover is aware that his sexual ‘partner’ is very intoxicated, and may be incompetent to
give legally effective consent, he may press on regardless.97 For the purpose of the
criminal law, competence can in practice be presumed. In criminal proceedings, one of
the elements the prosecution would usually have to prove (beyond reasonable doubt) was
that no legally effective consent had been given – either because the partner/victim was
not competent or, though competent, did not in fact consent. As a matter of law, all this is
commonplace. However, few would argue that the prime mover’s reliance on (in effect)
a presumption of competence was strikingly ethical. And it is not difficult to think of
other circumstances where few could argue that it is ethical for a sexual partner, or
clinician, or researcher, to simply presume competence.
97
The defendant’s awareness that the apparent consent may not have been true consent
(because of the extent of the partner’s intoxication) would often point to recklessness on the
defendant’s part. However, for the completed offence of rape (or an equivalent offence), it is
invariably necessary to prove (to a criminal law standard) that the victim did not in fact
consent.
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IX WHAT GOOD MIGHT IT DO?
At one level, a presumption of competence simply reflects reality. In the absence of
any indication to the contrary, it is frequently reasonable to proceed on the assumption
that an adult (or, indeed, ‘mature minor’) is competent. Hence when a usually-competent
adult arrives for a medical consultation, it is usually reasonable for that consultation to
proceed on the assumption that the patient is competent. Nevertheless, a patient’s
behaviour, or comments, or requests, will sometimes provide a reason to question that
assumption. There is then a need to take some steps to check whether the patient’s
competence is unimpaired, or at any rate adequate, rather than simply assume
competence.
The patient’s illness, or even age, will sometimes provide a good reason for a
clinician to pause and take steps to check whether the patient’s level of competence is
adequate, especially if the decision is a particularly important one. Where (as so often)
the treatment provided would be the same, whether the compliant patient is regarded as
competent (and purports to consent to it), or incompetent (and it is provided as being in
the patient’s best interests), the determination of competence is not that important.98 It
would often not warrant the time and expertise that a full assessment of competence
would require.
In a good many circumstances, clinicians might well be in breach of the duty of
care owed to patients were they to pause to summon expert assistance to determine
competence: the need for the speedy provision of treatment will take precedence.
However, there is no need for a presumption of competence in these circumstances: such
decisions-to-treat were made for decades, even centuries, before Lord Donaldson MR
(and then others) spoke of there being a presumption of competence to give or refuse
consent. Furthermore, the case law which supports a presumption of competence affords
little support for its being relied upon once doctors have significant doubts about a
patient’s capacity.99 The general law is adequate to negotiate such difficulties.
Emergency treatment (and long-term care) has been provided to questionably competent
individuals in countless hundreds of thousands of cases, without legal proceedings
ensuing.
The recent emphasis on presumption of competence has not been without any
redeeming features. It is of educational value, insofar as it makes the point that people
should not be presumed incompetent merely because they are known to have a serious
mental illness, or are of limited intellectual capacity. However, this does not require a
98
99
See In re T (Adult: Refusal of Treatment ) [1993] Fam 95, 122B-C (per Staughton LJ).
The one passage that led to this sentence being expressed in terms of ‘little support’, rather than
‘no support whatever’ occurred in the judgment in R (on the application of B) v Dr SS [2005]
EWHC 86 (Admin), [86]-[89]. Silber J did not suggest that clinicians could rely on a
presumption of competence, without taking steps to assess competence where it was in doubt.
But, after quoting from Butler-Sloss LJ’s formulation of the presumption in Re MB, above, he
did say ‘thus if there is some doubt whether a patient has capacity, the presumption that the
patient has capacity will not be rebutted’ and he continued: ‘It might mean that if a doctor or a
judge has serious doubts about whether a patient has capacity but not quite satisfied that he
lacks capacity, the patient will still be regarded as having capacity …’ ([86], emphasis added).
He later said that a patient could be considered to have capacity ‘not because he was shown to
have capacity but because the evidence of, for example, his confused mind, did not go quite far
enough to rebut the presumption of capacity’ ([89]). Silber J did not mention, and may have
overlooked, the passages in Re T, above; St George’s Healthcare NHS Trust v S, above; and Re
B, above, where Lord Donaldson MR, the Court of Appeal, and Butler-Sloss P and colleagues,
indicated that, in some cases of doubt about capacity, doctors should not proceed without court
involvement.
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presumption of competence: it is enough that it is recognised that there is no general
presumption of incompetence.100
When it comes to very young children, or people in a persistent vegetative state,
even a rebuttable presumption of competence is absurd. Indeed, with children generally,
a presumption of competence is misleadingly simplistic. Once again, there is no need for
a presumption of competence: it is enough that there is not a wide-ranging presumption
of incompetence.
A presumption of competence might be thought to help resolve one long-standing
‘problem’ – albeit one that has concerned academic lawyers more than the courts. This is
the supposedly ‘voluntary’ basis on which treatment is provided to many people with
acute mental illnesses, even though their intellectual processes are at present very
seriously impaired by their illness. In many cases, compulsory powers would be utilised
if the patients did not consent to treatment. Opinions differ on whether the widespread
practice of relying on impaired patient consent is a desirable one. Many patients prefer it
to the alternative of being ‘sectioned’. For them the safeguards that accompany
compulsion do not outweigh the stigma and restrictions that often ensue. But whatever
one’s view on this matter, it is clear that the presumption of competence as developed by
the English courts would be of little assistance in these circumstances. The English
judgments provide no support for the view that, even if doctors believe a patient to be
incompetent, they may turn a blind eye to that fact and press on regardless, on the basis
of a presumption of competence and the patient’s apparent consent. Only where,
following assessment, there was genuine uncertainty about whether the patient was or
was not competent, for the purpose in question, might a presumption of competence have
a role to play.
There is another way of resolving the practical ‘problem’. Following the main
thrust of Lord Donaldson MR’s judgment in Re T, there would be scope for courts to
hold that a minimal degree of competence suffices for patients to voluntarily accept (say)
that day’s medication, to contribute towards the amelioration of the effects of their
mental illness – especially where the same treatment would in all probability be provided
compulsorily, if not accepted ‘voluntarily’.101
X SOME HARM IT COULD DO
The variety of advance directive involving an anticipatory refusal of consent was
barely known a generation or two ago. Forty years ago, there was still the possibility of
treatment being provided once a person became incompetent, even when it was clear that
shortly beforehand, when competent, the patient had indicated an unwillingness to accept
that treatment. Acceptance of anticipatory refusals of consent has been one of the most
significant developments in medical law since the mid-1970s.
100
101
See Secretary, Department of Health and Community Services v JWB and SMB [Marion’s
Case] (1992) 175 CLR 218, 239: ‘it is important to stress that it cannot be presumed that an
intellectually disabled child is, by virtue of his disability, incapable of giving consent to
treatment’.
Cf, R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419 (CA), [80]
(per Hale LJ): ‘Our threshold of capacity is rightly a low one. It is better to keep it that way
and allow some non-consensual treatment of those who have capacity than to set such a high
threshold for capacity that many would never qualify’. Hale LJ, now Baroness Hale of
Richmond, a Justice of the United Kingdom Supreme Court, has given much more thought
to such matters than have most other members of the higher judiciary: see, eg, Brenda Hale,
Mental Health Law (5th ed, 2010). On the issue of a low threshold for capacity in a mental
health context, note also R (on the application of B) v Dr SS [2005] EWHC 86 (Admin),
[89]-[91] (per Silber J).
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However, the practical application of this variety of advance directive has often
proved a good deal more difficult than anticipated. This was brought home to me by the
experience of one the most impressive students I have ever taught. As an undergraduate
(then aged 21) Paul Wallis had written a research paper on advance directives, as part of
my Law and Medicine course. He was a keen supporter of their introduction and
implementation. Less than a year later, Paul was found to have several large, and
untreatable, brain tumours. Knowing that he did not have long to live, Paul embarked on
a dissertation on advance directives, under my supervision. Paul was exceptionally able
and also very familiar with a wide range of advance directives. He was also very wellinformed about the likely progress of his illness, and knew much more about the way in
which he was likely to die than do most people when making an advance directive. But
despite (or perhaps, because of) this, he found it impossible to draft an advance directive
that dealt adequately with the range of possibilities that he knew lay ahead. Eventually,
he decided that he would have to leave the decision-making to his doctor, in the light of
what the doctor knew about his values.
If doctors were required to treat all advance directives as those of fully competent
decision-makers, on the basis of a strong presumption of competence, they might have to
withhold life-saving treatment in circumstances where there was a significant degree of
doubt about the patient’s competence. Fortunately, the presumption in favour of the
preservation of life reduces the danger of action being taken on the basis of refusals of
treatment by people of questionable competence. And, as has been seen, there is judicial
support for continuing treatment in cases of doubt, so the matter can be determined by
the court.
There is reason to believe that a high proportion of people who make even serious
suicide attempts do not have the high level of competence that should be required for a
legally effective refusal of consent for life-saving treatment, at least when the
consequence would be death occurring long before it might otherwise do so. In the case
of adults, it seems that the great majority suffer from serious mental disorders102 – and,
much more often than not, will subsequently be glad that their lives have been saved.103
Especially (but by no means exclusively) in the case of adolescents, suicide attempts are
often barely considered responses to personal crises.104 Whether or not some psychiatric
label is applicable – it often will be105 – a presumption of competence would here be
102
103
104
105
For a recent survey, by two leaders in the field of suicide research, see Keith Hawton and Kes
van Heerington, ‘Suicide’ (2009) 373 The Lancet 1372-1381, esp 1374 (‘psychiatric disorders
are present in about 90% of people who kill themselves’). There is a vast array of other relevant
studies: see, eg, L Appleby et al, ‘Psychological Autopsy Study of Suicides by People Aged
Under 35’ (1999) 175 British Journal of Psychiatry 168-174; JTO Cavanagh et al,
‘Psychological Autopsy Studies of Suicide: A Systematic Review’ (2003) 33 Psychological
Medicine 395-405; J John Mann, ‘A Current Perspective of Suicide and Attempted Suicide’
(2002) 136 Annals of Internal Medicine 302-311. I am grateful to my sister in law, Dr Keren
Skegg (an experienced psychiatrist and an academic specialist in suicide studies), for directing
me to many of the studies cited here, and also for confirming the accuracy of the factual
assertions made in the paragraph of the text above.
Although further attempts are more likely than amongst the general population, the
overwhelming majority of those who have attempted suicide will be alive 10 years later. Of
those who have died, a good many will not be in consequence of suicide. (Dr Keren Skegg,
personal communication.) For a wide-ranging survey, see Keren Skegg, ‘Self-harm’ (2005)
366 The Lancet 1471-1483.
In an Oxford study, ‘over half of adolescent self-poisoners reported thinking seriously about
the act for less than quarter of an hour, and 16 per cent for a period between 15 minutes and
an hour. Only 8 per cent had contemplated taking the overdose for more than 24 hours’:
Keith Hawton, Suicide and Attempted Suicide Among Children and Adolescents (1986) 96.
In addition to the classic disorders, see now American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders (4th ed, 2000) ‘Adjustment Disorders’.
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highly undesirable in clinical practice. Even if one accepts (as I long have) that there are
circumstances in which intervention is inappropriate following an apparent suicide
attempt, for the most part a presumption of incompetence (to refuse life-saving treatment
following a ‘suicide attempt’) makes much more sense than does a presumption of
competence, in these circumstances.
A presumption of competence could be unhelpful in one other context: that of
minors. Lord Donaldson MR’s formulation of a (rebuttable) presumption of competence
was not merely expressed in terms of adults: he made clear that it ‘stems from the fact
that the patient is an adult’.106 A later judgment was framed in broader terms (‘Every
person’),107 but the English cases have all involved adults. It is, however, by no means
inconceivable that a well-established common law presumption of competence would in
due course extend to children. This would be highly undesirable, were it to apply to
clinical practice. There are many circumstances in which it should be accepted that
children are competent at common law to give a legally effective consent – as, along with
many others, I was arguing long before Gillick.108 However, children are not simply
miniature adults. The fact that an intelligent 10 year old can understand a medical
procedure as well as (or better than) an adequately competent adult, does not mean that
the child necessarily has the same decision-making abilities.
It is now widely recognised that parts of the brain with particular bearing on
decision-making develop gradually, and are not fully formed until well into young
adulthood.109 Hence a 25-year-old’s decision-making abilities are usually very different
from those of a 15-year-old, much less a 10-year-old.110 Clearly, there are many areas of
life where decision-making cannot be postponed until the brain development has reached
its zenith. Nevertheless, an all-embracing presumption of competence would be
unhelpful, were it to extend to clinical practice. Where a decision relating to health care
will have very serious implications for an adolescent’s future, and especially where it
involves the weighing of significant risks, it is desirable that those responsible do their
best to satisfy themselves that their patient has an appropriate degree of competence.
Again, this is not to argue for a presumption of incompetence; simply that,
inappropriately applied, a presumption of competence could result in doctors and others
assuming too readily that a minor is competent, without taking steps to determine that
matter one way or the other.
106
107
108
109
110
In re T (Adult: Refusal of Treatment) [1993] Fam 95, 115G (Eng CA).
In re MB (An Adult: Medical Treatment) [1997] 2 FCR 541, [1997] 8 Med LR 217, see
above n 38, [30] (Eng CA).
See, eg, PDG Skegg, ‘Consent to Medical Procedures on Minors’ (1973) 36 Modern Law
Review 370-381.
See generally, Bonnie L Halpern-Felsher and Elizabeth Cauffman, ‘Costs and Benefits of a
Decision: Decision-Making Competence in Adolescents and Adults’ (2001) 22 Applied
Developmental Psychology 257-273; Dustin Albert and Laurence Steinberg ‘Judgment and
Decision Making in Adolescence’ (2011) 21 Journal of Research on Adolescence 211-224.
The overwhelming majority of thinking and writing about the capacity of children (to give or
refuse consent) continues without regard to developments in knowledge about brain
development and risk assessment. For exceptions, see Paul Arshagouni, ‘But I’m an adult
now… sort of’: Adolescent Consent in Health Care Decision-Making and the Adolescent
Brain’ (2006) 6 Journal of Health Care Law and Policy 315-364; Sara B Johnson et al.,
‘Adolescent Maturity and the Brain: The Promise and Pitfalls of Neuroscience Research in
Adolescent Health Policy’ (2009) 45 Journal of Adolescent Health 216-221; Andy Piker,
‘Balancing Liberation and Protection: A Moderate Approach to Adolescent Health Care
Decision-Making’ (2011) 25 Bioethics 202-208.
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2011
XI FROM ENGLAND TO AUSTRALIA?
The common law presumption under consideration here owes its existence to
English judges: neither English practitioners nor English academics played a significant
role in its birth and development. However, it did not follow that its transplantation, or
immigration, to Australia had to await decisions of Australian judges.
In the most illuminating paper I have read in more than 40 years in academic life,
the legal historian AWB Simpson made the case for the common law being seen as a
customary system of law, within which what counts as law has depended upon its
reception and continued acceptance by the relevant caste of lawyers (including, but by no
means simply comprised of, judges).111 The composition of the relevant group varies
from one area of the law to another, and is rarely clearly delineated.112
This makes sense of two areas that have long been of particular interest to me. One
is the rule of English law that a human corpse is not the subject of property. This was
accepted long before there were any cases on the subject. When eventually there was
case law, judges did not treat the issue as one of first impression: the long-accepted rule
was accepted without question, with the scope for modification simply at the margins.
Similarly, in situations of medical emergency, treatment has long been provided without
consent to (often simply temporarily) incompetent patients. Although there was doubt
about the precise scope of the common law ‘rule’, and its theoretical basis, its ‘existence’
was not in doubt. However, for many decades, there was no leading (or even
inconsequential) English case that could be cited as establishing this law.113 When
eventually there was a major English case,114 the common law justification for treatment
in many emergency situations was never in doubt. The issue was the extent to which
whatever principle lay behind this justification for emergency treatment could also be
applied to non-emergency treatment in cases of long-term incompetence.
Happily gone are the days when decisions of the higher English courts, about
matters of the common law, find unthinking acceptance on the other side of the world.
However, it does not follow that a decision of a leading court, much less the High Court
of Australia, is required before an English development is accepted as part of Australian
law. Sometimes the appropriateness of the development will be such that it will be
accepted and acted upon by Australian practitioners, or embodied in Australian textbook
accounts, long before (if ever) it reaches Australian courts. Both as teachers and as
writers, academics are not simply disinterested observers of this process. The decision to
incorporate an overseas common law development in one’s account of the law, or (by
implication) to exclude it with a cf or cp or contra, is one contribution towards the
process of acceptance or rejection of the overseas development.
111
112
113
114
See AWB Simpson, ‘The Common Law and Legal Theory’ in AWB Simpson (ed.), Oxford
Essays in Jurisprudence, Second Series (1973) 77-99, esp 94-95. The subtlety and
profundity of Simpson’s account cannot be adequately summarised in a sentence or two. It is
not an easy read, but more than rewards the effort.
Sir Robert (later Lord) Goff adopted much the same approach a few years later, when he said
‘it can be argued that, in matters of doubt, the law is quite simply what the profession (or in a
specialised matter, the specialists in that subject) at any particular time believe it to be’: see
his ‘The Law as Taught and the Law as Practised’ (1977) 11 Law Teacher 75, 81. (Goff was
Simpson’s predecessor as Fellow and Tutor in Law at Lincoln College, Oxford.)
When the issue had arisen in passing in Gillick v West Norfolk and Wisbech Area Health
Authority [1986] AC 112 (HL), Lord Scarman had said ‘it would be unthinkable’ for the law
not to recognise an emergency exception (ibid, 181-2).
Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, also reported as F v West Berkshire
Health Authority [1989] 2 All ER 545; see especially per Lord Goff at 73-76 and 564-566
respectively.
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Presuming Competence to Consent
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On this understanding of the law, the English common law presumption of
competence could have become well-established in Australia (in areas of the law not
regulated by state legislation), even in the absence of judicial decisions. However, in the
case of the presumption of competence, this did not occur – at least initially. Valuable
works by several leading Australian medical lawyers quoted a passage from Re T which
included Lord Donaldson MR’s assertion that there is a rebuttable presumption of
competence to consent. However, they neither criticised nor incorporated the
presumption in their accompanying accounts of the law.115
In 2005 a slim volume in the Federation Press’s Australian Legal Monographs
series accepted the notion of a common law presumption of capacity,116 but the embrace
was decidedly cautious – if, on one view, unduly extensive.117 The authors of the chapter
in question118 wrote ‘It is natural and necessary for doctors to presume capacity in their
dealings with patients’, immediately adding: ‘but it is important to be aware of the signs
which indicate when it may be lacking’. They continued: ‘Ironically, it might be asked
whether, given the presumption of capacity, the rapid “processing” of patients in modernday practice could result in a number of “false-positive” attributions of capacity’.119
It was not until August 2009 that there were two Australian cases in which the
judgments incorporated a common law presumption of competence (to give or refuse
consent) in their account of the applicable law.120 The first case was Hunter and New
England Area Health Service v A121 (‘Hunter’), which came before McDougall J in the
Equity Division of the New South Wales Supreme Court. The second case was
Brightwater Care Group v Rossiter (‘Brightwater’),122 which was dealt with by Martin
CJ in Chambers in the Supreme Court of Western Australia. Both of these first instance
decisions have been widely discussed,123 so do not require extensive examination here.124
In both Hunter and Brightwater, the presumption of competence was (at most) of
peripheral importance, as in neither case was there any doubt about the patient’s
competence, or incompetence, at the relevant times. In their accounts of a common law
115
116
117
118
119
120
121
122
123
124
In Re Bridges (2001) 1 Qd R 574 (SC), Ambrose J provided an account of, and a series of
quotations from, Re T. One of these mentioned the presumption of capacity. However, given
the Queensland legislation that applied to the matter before the court, there was no question
of adopting the common law presumption. Re Bridges provided no indication of whether
Lord Donaldson MR’s presumption would apply elsewhere in Australia.
See Berna Collier, Chris Coyne and Karen Sullivan (eds.), Mental Capacity: Powers of
Attorney and Advance Health Directives (2005) 61-62. Re C was cited, rather than Re T or
Re MB.
It was assumed that the legal presumption is as applicable to professional practice as to legal
proceedings.
Malcolm Parker and Colleen Cartwright, ‘Medical Capacity in Medical Practice and
Advance Care Planning: Clinical, Ethical and Legal Issues’, in Collier et al, see above n 116,
56-92.
Ibid, 61-62. Re C was cited, rather than Re T or Re MB.
The judgments were delivered within eight days of each other, on 6 and 14 August
respectively. Another important (and, in some respects, related) medical law case was
decided in a third Australian jurisdiction in the same month: Australian Capital Territory v
JT (2009) 232 FLR 322. (Higgins CJ’s judgment in that case did not include mention of a
presumption of competence.)
(2009) 74 NSWLR 88.
[2009] WASC 229.
For an invaluable account of the Australian statute and case law, see Nick O’Neill and
Carmelle Peisah, Capacity and the Law (2011).
For the passages which mention a presumption of competence, see Hunter at [23] and
[40(7)], Brightwater at [23]. Portions of the summary provided in Hunter at [40] (including
[40(7)]) were quoted by Kourakis J in H Ltd v J (2010) 240 FLR 402, [40], and both of the
above-cited passages from Hunter were quoted by Johnson J in Justins v R [2010]
NSWCCA 242, [357] and [360].
186
University of Queensland Law Journal
2011
presumption of competence (and in more than a few other respects), the judgments had a
good deal in common. Both cited leading English decisions about the presumption, and
there was no suggestion that the common law of Australia was different from that of
England in this matter. Both focused on the presumption in the context of legal
proceedings, and neither discussed its applicability (or otherwise) in clinical practice.
Neither contained the least suggestion that the presumption applied in the case of minors:
both avoided the broader language of the English Court of Appeal in Re MB (‘Every
person’), even when quoting from or citing that case.125
In consequence of Hunter and Brightwater, and two yet more recent cases that have
quoted what was said in Hunter about the presumption,126 the common law presumption
of competence can be said to have found significant acceptance by Australian judges.
However, the judicial references to it have thrown no light on the question of what role,
if any, the legal presumption should play in clinical practice. And as in England, so too in
Australia, there is not a single reported or traceable case in which the common law
presumption has affected the court’s finding that a patient was, or was not, competent.
XII BY WAY OF CONCLUSION …
Only in recent decades has there been talk of a common law presumption of
competence to give or refuse consent to medical treatment. However, in its proper
context of legal proceedings, it is by no means a novelty – if understood, as it should be,
as a particular application of a long-established, and wide-ranging, presumption. This is
the presumption of mental, and hence for the most part legal, capacity.127 That
presumption, or premise, or principle, is a long-standing one. It was, for example, much
more than three hundred years ago that Sir Mathew Hale wrote: ‘In presumption of law
every person is presumed of sane memory, unless the contrary be proved; and this holds
as well in cases civil, as criminal’.128
Given that, in an adversarial system, one party must bear the burden of proving
particular matters, there is much to be said for the common law presumption of
competence to give or refuse consent, and its statutory equivalents. However, what
makes good sense in legal proceedings is not always a good guide to clinical practice.
The English courts have made it clear that, even for the purpose of litigation, clinicians
should not simply rely on the presumption. Where they have doubts about a patient’s
competence, and the circumstances warrant it, clinicians must make their own
assessment of competence. Judges have indicated that, where necessary, the issue should
be referred to a court, so the judge can determine competence after hearing all the
relevant evidence.
Discussion of the presumption of competence has proceeded without consideration
of a clinician’s duty of care towards a patient, and in particular of the circumstances in
125
126
127
128
See especially Hunter at [23]; note also Rossiter at its [23].
See above note 124.
The use made by the English Court of Appeal in Masterman-Lister v Brutton & Co (Nos 1
and 2) [2003] 1 WLR 1511 of the familiar English cases on capacity to consent to treatment
brought home to me the extent to which these cases are simply applications of broader
principles that apply over a wide range of legal decision-making. This was reinforced by
Lindsay v Wood [2006] EWHC 2895 (QB), another case involving capacity to litigate. After
stating that the law relating to capacity had been helpfully clarified by the Court of Appeal in
Masterman-Lister, Stanley Burnton J continued: ‘Every person is presumed to have capacity.
The onus is on the person alleging incapacity to establish it’ ([12]). Note also the cases
mentioned at the beginning and end of n 25, above.
1 Hale PC 33. Hale died in 1676; his Pleas of the Crown (or, to give it its full title Historia
Placitorum Coronae: The History of the Pleas of the Crown) was first published in 1736.
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which there is a duty to assess competence. There is scope for discussion amongst
clinicians, ethicists, lawyers, and patient representatives, about the circumstances in
which it is reasonable (in clinical practice, as opposed to legal proceedings) to assume
competence, and when it should be investigated and determined.
In a great many circumstances, it is reasonable that competence be assumed. Even
when competence is in doubt, treatment should often proceed without the matter being
investigated. Time is often of the essence. Even when it is not, there are a great many
circumstances where the (un-)importance of the intervention does not warrant an
investigation of competence. Where the patient is compliant, the outcome will often be
the same whether or not the patient is regarded as competent.129
There are, however, circumstances where some steps should be taken to provide
reassurance of competence, rather than simply presume it. One such situation would be
that of vulnerable adults who were being recruited for a drug trial that would involve an
element of risk and no benefit to their health. Another is of people who volunteer to be
living kidney donors, putting their own health and comfort at risk to benefit others.130 At
a more mundane level, geriatricians (for example) should frequently seek to assess
competence rather than rely on any presumption of competence.
In an emergency room setting, (apparent) suicide attempters should not be
presumed competent. Whether or not there is an associated ‘suicide note’, or some other
indication of a wish to die, a rebuttable presumption of incompetence makes much better
sense in practice than would a presumption of competence.131
Legal presumptions, which are entirely appropriate in a court of law, can be a very
inadequate guide to professional practice. As one of Australasia’s greatest jurists wrote,
long ago:132
Many … presumptions are based on no real estimate of probabilities, but are established
for the purpose of placing the burden of proof upon the party who is best able to bear it,
or who may most justly be made to bear it. Persons accused of crime are probably guilty,
but the presumption of their innocence is in most cases and with certain limitations
clearly expedient.
The legal presumption of innocence is not a good reason for the police to neglect to
develop a list of possible ‘suspects’ as part of an investigation. Similarly, in some
respects, the presumption of competence to give or refuse consent, while often entirely
appropriate in the context of legal proceedings, is by no means always an adequate guide
to clinical practice. Only with some categories of patients, and some areas of medical
practice, is it consistent with ‘a real estimate of probabilities’.
Transplanted from the courtroom to the doctor’s surgery, and in the absence of an
appropriate duty to assess competence, the presumption could sometimes function in a
way that was very silly indeed.
129
130
131
132
See In re T (Adult: Refusal of Treatment ) [1993] Fam 95, 122B-C, per Staughton LJ
(indicating that, in some circumstances where there is doubt about the validity of patient
consent, ‘the surgeon may lawfully operate, in the knowledge that he can be justified either
by consent or by the principle of necessity, whichever is in fact applicable’).
There should certainly not be a presumption of incompetence in such a case: it is enough that
some steps be taken to check that the decision is a competent, as well as a free and informed,
one.
Were the characteristics of people who attempt suicide to change, this presumption would
require reconsideration.
John W Salmond, Jurisprudence or The Theory of the Law (1902) 590. This work was
published during Salmond’s sixth year as Professor of Law at the University of Adelaide;
four years later he returned to New Zealand, initially as a Professor of Law. The passage
quoted above was retained by later editors of the book: Salmond on Jurisprudence (11th ed,
1957, by Glanville Williams) 512.