Capacity an Act in force — at last

Abstract

As the playing field of knowledge between doctor and patient has become more level over the last 100 years, the law's respect for the autonomy of the patient has increased all over the Western world. Buttressed by medical views that patients exercising their autonomy tend to do better, the public have been encouraged to have less faith in the notion that the doctor knows best or that the contents of medication should remain obscure. In England and Wales, and probably Scotland as well, as a result of the ruling in Chester vs Afshar , it is now the law that where a patient is not warned of a risk that should have been mentioned to a patient preoperatively, the surgeon will become the insurer of that risk because the law pretends that it is the failure to mention the hazard that has caused the damage. This legal fiction is there to enforce the autonomy of the patient, even if they would have gone ahead with the operation in any event if the risk had been mentioned. This is a rule that has been fashioned for doctors alone, as we now know it does not apply to barristers, independent financial advisers, or estate agents. Whether it applies also to GPs who prescribe medicines and fail to mention those risks that should have been mentioned remains to be seen. In this brave but lonely new world in which we all approach our doctors to exercise our autonomy rather than to be treated for our ailments, there is an awkward anomalous group: the patients who lack capacity to make decisions for themselves. They cannot, by definition, exercise their autonomy. Someone else has to do it for them and the question is who and by what rules. For this group, 1 October 2007 is …