Assessing capacity to decide on medical treatment : On human rights and the use of medical knowledge in the laws of England, Russia and Sweden

Abstract: To provide a valid consent to – or refusal of – medical intervention, a patient must be legally capable to decide. This dissertation evaluates and compares when the assessment of mental abilities to refuse – or consent to – somatic medical intervention is required in England, Russia and Sweden, and what criteria must be applied to assess the ability to decide about somatic medical interventions in these legal orders. Two standards are used for evaluation and comparison. These standards are consistency with scientific knowledge of the decision-making process, and compliance with the United Nations and the Council of Europe human rights law requirements. The evaluation and comparison of the national legal orders seek to highlight the solutions and the potential difficulties that the domestic legal systems face when they attempt to realise the two standards.The analysis in the thesis indicates that the United Nations and the Council of Europe treaty bodies have chosen different approaches as to permissibility of capacity assessment procedures. It is argued that after adoption of the Convention on the Rights of Persons with Disabilities (CRPD), the capacity assessments of adults should not be allowed in healthcare.A number of common problems within the selected legal systems are identified and analysed in the thesis. The question of when capacity assessments must start has not yet received much attention at national levels, which results in an absence of foreseeability and a possibility for discriminating against patients on the grounds of disability or health. The thesis highlights the fact that the national law requirements to draw a distinction between mental and somatic disorders/care are particularly problematic, and may lead to arbitrariness. The questions as to the legal classification of capacity assessment procedures (whether they are medical interventions or the collection of personal data), and accordingly, the legal status of refusal or absence of consent are also poorly foreseeable, which may lead to a violation of the patient’s right to privacy.The analysis shows that the criteria for capacity assessments are regulated in a manner that inevitably leads to arbitrariness when deciding whether a patient can make healthcare decisions. It was shown that the criteria are interpreted differently by various actors, and no agreement as to the required level of performance is reached. It is also argued that capacity assessments rarely allow for achieving the goal of checking whether or not a patient can choose what to do with his or her own body.

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