If they have the mental capacity to understand and weigh up the consequences, they can make decisions for themselves about whether to accept or decline treatment that's being offered.  They cannot be made to accept treatment they do not want.

Challenging decisions - a person's right to self determination or autonomy - is something the courts will generally uphold.  What matters is the individual's right for self determination rather than how reasonable or unreasonable their choices for themselves may appear to others.

Young people aged 16 or over are assumed to have capacity to make decisions for themselves, unless proven otherwise.  Those under 16 might have capacity according to the rules of Gillick competence.

However, where a doctor decides not to offer a particular treatment that the patient wants, the question becomes whether the doctor's decision can be challenged.  The issues to look at include:

• whether the doctor has understood the patient's wishes
• whether the doctor taken all other relevant considerations into account
• whether the refusal is one that a responsible body of medical opinion would find acceptable - or whether the doctor is in a minority in declining to offer the treatment
• whether funding can or should be made available for the treatment
• whether another doctor or institution would take a different view and offer this or another particular treatment
• how the doctor or hospital might be persuaded to change their mind; and
• whether a court would overrule or interfere with the decision

Involuntary treatment

Patients lacking mental capacity are dealt with differently, as they are unlikely to be capable of challenging decisions.  It's possible to choose someone - a proxy or attorney - to give decision making powers to. It's also possible to record your own wishes and preferences for future reference.

Unless this is done, decisions are left in the hands of doctors based on what are perceived to be the patient's best interests.  Although family and significant others should be consulted, the decision rests with doctor and not family.

These days, especially with the advance of the Liverpool pathway, such decisions are as likely to involve nurses as doctors.

It is therefore important to know:

• whether the patient has or has not got capacity to make this particular decision
• whether any valid advance directives have been made
• what the patient's own values and preferences would be
  what factors to take into account in working out what is in the best interests of someone who can no longer express their wishes for themselves
• what amount to 'best interests' in these particular circumstances
• how to best approach the doctor or hospital with additional information or alternative opinions
• in what circumstances a court will intervene and what the likely outcome might be

Remember that when challenging decisions, capacity is specific to the decision under consideration. Making a major decision with life or death consequences may require more understanding than a trivial decision.

Capacity can also fluctuate over time.  It may be necessary to revisit from time an assessment as to whether a person has capacity for challenging decisions.

Help is at hand

Navigating a way through this ethical and legal maze calls for skilled and experienced specialist advice.  Knowing where the law will not interfere can be as important as knowing where the court will step in to review a decision. 

If you are concerned about a decision that has been made - or one that has not been made but should have been - about medical treatment for yourself or a member of your family, then call 03700 86 86 86 to discuss how best to approach and inform challenging decisions.

We can advise you about all steps through from documenting your own preferences for future care through to seeking a declaration from the court on the lawfulness of medical decisions to treat or withhold treatment.

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