Consent for a Person Who Cannot Consent

In one line

Somebody has to decide, and the law's answer is that whoever decides is deciding for the patient and not for themselves.

In the wording a student can write in an exam: where a person lacks the capacity to consent, treatment is authorised not by dispensing with consent but by substituting a decision made in accordance with the person's best interest and, so far as possible, with their own participation; the substituted decision is subject to stricter limits in research than in treatment, where the requirement is ordinarily of direct health benefit; and a refusal by a person who cannot give a valid consent is nonetheless to be respected.

Why the law has this at all

Incapacity does not remove the need for treatment, so a rule that simply forbade intervention would abandon exactly the people least able to protect themselves. But a rule that treated incapacity as removing the requirement of consent would put those same people entirely at the disposal of others.

The framework's answer is to keep the requirement and change who satisfies it, with three safeguards attached: the decision must be for the patient, the patient must be involved so far as they can be, and the situations in which the substituted decision may authorise something that does not benefit the patient are narrowly defined.

A candidate should notice that the second safeguard is the one most often ignored in practice. It is easy to obtain a relative's signature and treat the matter as closed; the instruments require more than that.

Who cannot consent

Three categories, and they behave differently.

The temporarily unconscious or incapacitated. A patient under anaesthesia, or unconscious after an accident. The incapacity is expected to end, which matters: the question is usually whether the decision can wait.

The person lacking decision-making capacity by reason of condition. Capacity here is question-specific and time-specific: a person may lack capacity for one decision and have it for another, and may lack it today and have it next week. Suchita Srivastava v. Chandigarh Administration is the Indian illustration and is discussed below.

The minor. Age supplies a general rule and a poor one, because a person a day under the age of majority is not a different person a day after it, and older minors may in fact understand a proposed treatment perfectly well.

The general principles

UNESCO 2005, article 7, is the provision to know. In accordance with domestic law, special protection is to be given to persons who do not have the capacity to consent:

• (a) authorisation for research and medical practice should be obtained in accordance with the best interest of the person concerned and in accordance with domestic law; however, the person concerned should be involved to the greatest extent possible in the decision-making process of consent, as well as that of withdrawing consent;
• (b) research should only be carried out for his or her direct health benefit, subject to the authorisation and the protective conditions prescribed by law, and if there is no research alternative of comparable effectiveness with participants able to consent. Research without potential direct health benefit should only be undertaken by way of exception, with the utmost restraint, exposing the person only to minimal risk and minimal burden, and if the research is expected to contribute to the health benefit of other persons in the same category, subject to conditions prescribed by law and compatible with the protection of the individual's human rights. Refusal of such persons to take part in research should be respected.