Assessing the Patient's Competence to Consent to Medical Treatment

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Abstract
The consent of a patient to medical treatment is commonly regarded as the cornerstone of the doctor-patient relationship. As an ethical principle the requirement to obtain consent reflects due respect for the principle of patient autonomy. In law consent protects bodily integrity and self-determination, since without a valid consent the doctor who undertakes any form of examination, diagnostic procedure or treatment which involves a touching of a competent patient commits the tort of battery. Consent provides the doctor's defence to potential liability. On the other hand, for the consent to be valid the patient must be competent.1 If the patient is incompetent then different legal considerations apply. In recent years there has been considerable judicial and academic ink spilt on the question of what consequences flow in law from the decision that a patient is competent or incompetent, but comparatively little attention has been paid, at least in English law, to the criteria by which one should determine the crucial threshold question, namely whether the patient is in fact competent. This is gradually changing, with a trickle of cases on the subject and the publication of the English Law Commission's Report, Mental Incapacity2 The purpose of this article is to consider the legal tests for competence that are currently applied, and the relationship, if any, between decisions about competence and the patient's choice of treatment options, including the option of no treatment. The Law Commission's proposals will then be discussed in the light of the common law position.

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