Essay on Justice Thorpe 's Right And Legally Appropriate Thing

Essay on Justice Thorpe 's Right And Legally Appropriate Thing

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When the application is to be heard by the court, the court will go through certain steps and criteria established in legislation and previous caselaw in order to establish the right and legally appropriate thing to do that upholds the patient’s integrity. I will analyse each possible step and advise the likely outcome of this application to the court.
Haatim refused treatment in ‘fear that the surgeon will insert a microchip into brain to track his movements and then change the colour of his blood’ S1(4) of the Mental Capacity Act 2005 states a person is not to be treated as unable to make a decision merely because he makes an unwise decision. Therefore just because Haatim decision that seems random this doesn’t necessarily mean he lacks capacity. Which similar to the courts judgement in Re C (Adult: Refusal of Treatment) 1994. In this case a patient with paranoid schizophrenia believed he could cure his gangrenous foot himself. Justice Thorpe asserted ‘I am satisfied that he has understood and retained the relevant treatment information, that in his own way he believes it, and that in the same fashion he has arrived at a clear choice.’
Although, it is sometimes difficult to distinguish between a person’s bizarre and irrational wishes, which must nevertheless be respected, and a person’s inability to use and weigh information, which may mean they fail S3(1) of the test of capacity. There is tension between the right to make a decision for no reasons at all and the requirement that the person weighs relevant informant in the balance to arrive at a choice. As Butler-Sloss LJ put it in Re MB, ‘panic, indecisiveness and irrationality in themselves do not as such amount to incompetence, but they maybe symptoms or evidence of inco...


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... that the medical professionals must not perform any operation to Haatim when if he loses capacity as he has made a valid AD and irrespective of his family’s wishes.
Conversely as I have shown this may not be seen as justified as there is much greater clarity needed in the law shown by law reports and academic writing that a reform is necessary. In the ‘conclusions and recommendations’ of the HL committee’s report it shows that the presumption of capacity, is widely misunderstood by those involved in care. It is sometimes used to support non-intervention or poor care, leaving vulnerable adults exposed to risk of harm. In some cases this is because professionals struggle to understand how to apply the principle in practice. In other cases, the evidence suggests the principle has been deliberately misappropriated to avoid taking responsibility for a vulnerable adult.

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