What made the balance difficult to strike was that it
appeared that C’s refusal was bound up with a mix of non-rational and illogical
reasons. In the words of Thorpe J: ‘: ‘…C’s capacity is reduced by his mental
illness. But for him the decision as to whether it is sufficiently reduced remains
marginal in the absence of any direct link between the persecutory delusions
and his present condition.’1 The courts had to consider
whether C’s capacity was so reduced by his
chronic mental illness that he did not adequately understand the nature and the
effects of the treatment.
Consequentialism (outcome based) and deontology (rule
based) are two key theories which can be used to apply normative ethics to
making decisions when it comes to refusal of treatment. Consequentialism
reflects the consequences of actions in order to recognise which choice is
expected to yield the most benefit. The outcome based approach would argue that
the patient should not be able to refuse treatment, as the doctor’s choice
would be expected to have the most benefit. However, in Re C, this was not the
case. Harrington suggests that ‘Knowledge of risks and consequences would
distress and thus harm the patient. It might also persuade him to forego
therapy, thus, frustrate the doctor’s beneficent work.’2 This depicts the
paternalism view and would suggest that the doctor’s choice would be the best
option, which supports consequentialism.
Deontology highlights that certain acts are either right or
wrong, and whether that act is right or wrong doesn’t depend on its
consequences. The deontology theory would state to respect the patient’s
choice, in this case Re C refused treatment, so the doctors should respect his
choice of not going ahead with the treatment.
The notion of autonomy is essential in refusal of treatment. It includes
the right to decide how someone lives their life. This is also shown within the
Human Right Act 1998, Article 83,
which emphasises the view that everyone has right to a private life with no
interference from a public authority4.
In terms of Re C this could be seen as the right to refuse treatment. For
example, lawyers are not to tell clients they are making a bad decision,
instead they give their own advice and let the client make a choice. This can
be adopted by doctors, let the patient make their own choice.
Consequentialism can be used to rationalise overruling
a patient’s decision to refuse treatment if it is the best outcome. This
challenges the deontological theory that it is essentially wrong not to respect
the patient’s decision.
According to the Mental Capacity Act5, if a patient lacks
capacity, it must be shown that the patient is unable to understand the
relevant information and is therefore, incapable of making a decision. It does
not matter if the decision is irrational. Thorpe J acknowledged the view of two
doctors that there was no direct link between C’s refusal and his delusions,
commenting that ‘his rejection of amputation seemed to result from sincerely
On this basis, the verdict in Re C may have been
right. That is if the actual grounds for C’s refusal were undeniably of a
non-rational, religious character. Respect for C’s autonomy should be
paramount. Contrast the position, however, if the main reason for the refusal
was based upon C’s misconception that he was a ‘famous surgeon’. In that case,
giving effect to his autonomy would hardly have been satisfactory. Instead the
relevant starting point for the court ought to have been the ‘best interests’
of C and the principle of the sanctity of human life.
2 Articles Harrington, J, ‘Privileging
the medical norm: liberalism, self-determination and refusal of treatment’ 1996
16 Legal Studies 348 .
Rights Act 1998
Rights Act 1998
Mental Capacity Act 2005
1 weekly law reports: 290. Article by C’s Counsel, Gordon R and Barlow C. New
law journal 1993; Dec 3: 1719-1720.