Adult Patients Who Are Incompetent

Since the implementation of the 1983 Mental Health Act in England and Wales (and the equivalent in Scotland) no parent, relative, guardian, or court can give consent to the treatment of an adult patient who is mentally incompetent (16). The House of Lords had to consider a request to sterilize a 36-yr-old woman with permanent mental incapacity and a mental age of 5 years who had formed a sexual relationship with a fellow patient. The court held that no one, not even the courts, could give consent on behalf of an adult who was incompetent. (This is because the 1983 act removed the parens patriae jurisdiction of the courts in England and Wales; those jurisdictions in which courts retain parens patriae powers retain the ability to provide consent in such circumstances.) However, the House of Lords made clear that doctors could act in the best interests of their adult patients who are incompetent by treating them in accordance with a responsible body of professional opinion (i.e., in accord with the Bolam principle, ref. 17).

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