When your mind is not your own

August 06, 2018 | 3 minutes

The Royal Court was recently asked to consider if the views of a patient should be overridden on the basis of medical advice.  The case is known as AG v. Ms A [2018] JRC012 in order to protect the identity of the patient and avoid her identification.

The starting point for the Court when considering overruling the decision of an individual is that every individual has capacity to make decisions.

This case concerned an individual who was thought to be smuggling drugs internally and the medical team had concerns about her medical condition as a result of these suspicions.

The Court, having heard evidence and reviewed all the documents confirmed a four stage test:-

  1. Demonstration that they comprehend information given to them;
  2. That they can retain (that information);
  3. That they can weigh up the pros and cons and reach a decision; and
  4. They can communicate that decision.

In addition the Court identified an additional factor – “that the will of the patient was overborne by undue influence or coercion such that the patient cannot form a proper judgment”.

The importance of this decision can impact anyone who is in medical need of treatment but that their condition impacts on their ability to make an informed decision about their care and or treatment.

Currently Jersey does not have provision for Lasting Powers of Attorney (*) which would ensure that the voice of the individual would be heard once they lost capacity, or were in circumstances where it was not clear if they had capacity or not.  This may be relevant not only with regard to medical issues but also financial decisions (for example encashment of investments to pay costs of care).

* The new Capacity and Mental Health Laws are anticipated to come into force on 1 October 2018

For more information on this topic, please contact Chris Hillier or any member of The Team.

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