By Jonathan Lewis.

With the establishment of the Mental Capacity Act (“MCA”) 2005 in England and Wales, the days of court interventions into the lives of adults with mental capacity seemed numbered. If you were an adult with capacity, then you were legally recognised as able to give genuine consent to care and medical treatments. If you were lacking in capacity, then the MCA 2005 provided specific procedures that granted a designated third-party the authority to make decisions in your best interests. But there is a gap in the Act through which a certain group has fallen – adults with capacity who are judged to be “vulnerable”. Capacitous vulnerable adults are not covered by the Act, so, for the past thirteen years, the High Court has continued to exercise its “inherent jurisdiction” in order to intervene in the lives of adults with capacity who are considered to be at risk from giving genuine consent (i.e., they are at risk of being constrained, coerced, unduly influenced, and so on).

The High Court has claimed that the primary purpose of exercising its inherent jurisdiction is to allow vulnerable adults with mental capacity to “regain their autonomy of decision making”. This involves alleviating those risks by which a capacitous vulnerable adult was deemed to be “vulnerable” in the first place so that they can give and express genuine consent. But, as I argue in this post’s associated paper, giving genuine consent cannot be equated with exercising one’s autonomy. So, the “inherent jurisdiction” fails – at least in principle – to achieve its intended primary purpose.

By suggesting that vulnerable patients need to regain their autonomy of decision-making, what health care practitioners and the courts have missed is that vulnerability and autonomy are not incompatible concepts. Capacitous vulnerable adults can reason soundly in accordance with their own values, desires and motives and come to a decision that coheres with those motivating reasons, thereby fulfilling the conditions of rational deliberation that many medical ethicists take to be a necessary feature of autonomy. In such cases, there is no autonomy to be “regained”. The fact that a patient is judged to be vulnerable does not in itself support the inference that they are incapable of making autonomous decisions with regards to care and medical treatment.

The problem is that health care practitioners and the courts have operated on the assumption that vulnerability and autonomy are incompatible. This has led to competent, but vulnerable, patients being denied the opportunity to make medical decisions that concern them. More worryingly, it has also led to their explicit wishes being overturned (e.g., Ms B v An NHS Hospital Trust [2002], Mazhar v Lord Chancellor [2017]). This can violate the autonomy of capacitous vulnerable adults in two ways. Firstly, if a competent vulnerable patient expressly refuses a proposed care or medical intervention, then the denial of their decision-making authority prevents them from exerting the boundaries of their sovereign authority over their body. Secondly, in a case where the vulnerable patient is demonstrably able and willing to make autonomous decisions (e.g., Mazhar v Lord Chancellor [2017]), acting in their best interests in a way that is not in accord with their expressed wishes is representative of the court’s and/or health care staff’s failure to acknowledge the patient’s status as an autonomous agent. Acting in this way precludes the patient from making claims to autonomy altogether.

Of course, one might suggest that bodily violations and harms to a capacitous vulnerable adult’s autonomy are the ethical prices that must be paid so that health care practitioners and the courts can protect these individuals from other harms. However, once we recognise that vulnerability and autonomy are not incompatible, then an argument can be made for treating vulnerable adults with capacity the same as other competent patients where possible. In the paper associated with this post, I go on to make that argument. I conclude that, in the face of harms to a vulnerable patient’s autonomy arising from legal and health care approaches to vulnerability in general, it is the duty of both health care practitioners and the courts – in the first instance – to seek to promote the autonomy of capacitous vulnerable adults where possible.

Paper title: Capturing and Promoting the Autonomy of Capacitous Vulnerable Adults

Author: Jonathan Lewis

Affiliations: Dublin City University

Competing interests: None

Social media accounts of post author: @jonlewis84