Capacity and treatment refusal: how law should deal with the case of anorexia nervosa

Abstract

The case of severe anorexia presents profoundly difficult ethical challenges. Respecting a personrs autonomy to refuse treatment may mean lgiving intor their illness, but forcing treatment seems cruel. These matters put strain on the concept of lcapacityr, the test by which the law decides who can make their own decisions. Critical reaction to relevant legal decisions indicates that there is a lack of consensus over how the law should decide capacity in the case of anorexia. nThe aim of this thesis is to examine what process of reasoning courts should use to decide whether or not someone has the capacity to refuse treatment for anorexia. It will consider the specific issues pertaining to anorexia. However, while anorexia presents particular difficulties for the law of capacity, it is not unique; there are other mental illnesses with overlapping features. This means that the primary question of this thesis cannot be answered without considering the wider role of capacity in the legal system. Therefore, a necessary first step in this thesis was to examine the broader question: how should the courts determine whether or not a person has the capacity to make medical treatment decisions in general? nIn order to examine the broader question, a critical analysis of the law of capacity in Australia, England and Wales was performed. This was done by reviewing case law and legislation in those jurisdictions, and by conducting a case analysis of legal capacity decisions in different contexts in a single jurisdiction (Queensland, Australia). This analysis led to two central conclusions. Firstly, as well as autonomy, there is a necessary and legitimate role for beneficence in the determination of capacity; a role that is sometimes not acknowledged in the context of a strong focus on autonomy. This role for beneficence allows for limited consideration of the loutcomer of a decision, and the nature of a mental illness experienced by the decision maker, when determining someoners capacity to make a decision. However, the second conclusion is that even this limited role for beneficence carries the danger that people with mental illnesses who refuse what is seen to be necessary medical treatment will inevitably be found to lack capacity to make that decision, thus these peoplers decision making freedom is inappropriately restrained. nIt is important that this shortcoming in the legal process should be addressed. In order to do this, courts should ensure that determinations of capacity are not made on medical evidence alone. It is argued that a proper capacity assessment should include close and careful engagement with the person, in order to discover his or her subjective perspectives, values and desires. Information gathered from this engagement should play a central role in the determination of capacity. Thisnwould ensure both that the capacity assessment is in keeping with what the law prescribes, and that the autonomy of people with mental disabilities is not inappropriately curtailed by medical beneficence. nThis thesis then considers the specific issue of capacity to refuse treatment for anorexia. Analysis of relevant published legal decisions reveals that a problematic form of reasoning is currently being used, such that a person diagnosed with anorexia will never be found to have capacity to refuse its treatment. Methods by which this form of reasoning can be avoided are explained. Primarily, this involves reaffirming the lfunctionalr approach to capacity assessment, and applying the conclusions developed regarding capacity generally, in which close attention is given to the subjective views of the decision maker.nIn applying the conclusions of this thesis, it may be the case that many people with anorexia will be found to lack capacity to refuse its treatment, as currently occurs. However, implementing the conclusions of this thesis ought to have the effect of giving the decision makers a voice in the determination of their capacity, one that is not currently being given. Further, its effect should be that it becomes possible for someone to be found to have capacity to refuse treatment for anorexia, thereby disrupting the automatic association between diagnosis and incapacity that the current approach creates. n