This assumption applies to persons 21 years of age or older.  In this circumstance, Jonathan has capacity – though if it was suspected if this may not be the case, two psychiatrists could be requested to make an assessment. However, excepting this (and it does not seem there has been any history of such lack of capacity, or that depression would cause such temporary incapacity), then Jonathan can indeed refuse treatment. (Owens, 2014)

The General Medical Council web site advises:

  “You must respect a competent patient’s decision to refuse an investigation or treatment, even if you think their decision is wrong or irrational.* You may advise the patient of your clinical opinion, but you must not put pressure on them to accept your advice.† You must be careful that your words and actions do not imply judgement of the patient or their beliefs and values.” (Council, 2013)

Principle 3: “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.” [section 3(4) Mental Capacity Act] 3.5.1, therefore Jonathan’s decision should be respected to avoid breach of his human rights (absolute human rights not being capable of removal under Article 6 of the Human Rights Act 1998. (Chancellor, 2007)

 A person is free to make his own decisions even if those decisions are unwise in the view of others, for example, relatives, care staff and doctors. This is a very important principle in autonomy (freedom) which recognises the right of a person to make his own choices.

 Just because a decision is unwise does not mean that the person has lost mental capacity. 3.5.2 However, there is a difference between a person making an unwise decision (which the person who decides may make) and his making a decision when he lacks the ability to understand, remember or use the information necessary to make the decision (see paragraph 4.6). 3.5.3 If a person makes several decisions which are unusual bearing in mind his usual behaviour or makes decisions which make it easy for him to be exploited or harmed, then further investigation into that person’s capacity should be conducted. (Basant K. Puri, 2005)

The definition of “lack of capacity” provides a two-stage test for mental capacity [section 4(1) Mental Capacity Act]: STEP 1: Is the person suffering from an impairment of, or disturbance in the functioning of the mind or brain? STEP 2: If yes, does the impairment or disturbance cause the person to be unable to make a decision when he needs to? (Health, 2015)

Unless Jonathan has been deemed to lack capacity as appraised two doctors, then his decision must be respected and upheld, though information, and support should be offered e.g. offer of pain killers or carer support. (Basant K. Puri, 2005)

It is also clear from MHA guidance on their Code of Practice in relation to the Mental Health Act, that the provisions of the Act should not be used to a greater extent than is necessary i.e. proportionality, to preserve the rights and independence of the patient so far as possible, though if capacity is diminished, to overrule / assist decisions to the most limited possible degree in their interests.  (Dimond, 2016)