Refusing Medical Treatment due to Mental Capacity - A Study of the Concept of a Valid Consent and What the Healthcare Personnel's Obligations are When the Patient has not Given an Informed Consent

Abstract: This essay has two purposes: to examine how much the patient has to understand to be able to consent to medical treatment and what the healthcare personnel's obligations are when the consent is not informed. Regarding the first purpose I concluded that there is no explicit requirement of a certain mental capacity to consent but that if one considered an uninformed consent to constitute a forced bodily intervention, which is prohibited in Chapter 2 Section 6 Instrument of the Government, then medical treatment can be refused. Regarding the essay's second purpose I examined this both in relation to Swedish and international law. With Swedish law I, firstly, studied the healthcare personnel's obligations to provide a good, patient-oriented, care and care with equal opportunity. I concluded that since these obligations are vague it is unclear if the healthcare personnel would contravene these obligations if they refused to give medical treatment. Secondly, I examined if refusal to give medical treatment due to mental capacity could constitute discrimination and I studied this in relation to indirect discrimination and inadequate accessibility. I concluded that there are uncertainties if patients with reduced decision-making capabilities would be regarded as disabled within the meaning of DiskL. I also concluded that it could constitute indirect discrimination but that the refusal could be allowed if there was a risk of the patient being harmed. Additionally, I concluded that it was hard to assess if it could constitute inadequate accessibility, partly since one has to consider the financial and practical aspects, partly since it is unclear if individual adjustments are included. Secondly, I examined international law, specifically the ECHR and the CRPD. Regarding the ECHR I concluded that it is possible to claim that there has been an interference with the convention but that an individual assessment must be made. Regarding the CRPD I concluded that it would interfere with the right to legal capacity to refuse medical treatment. I also stated that Sweden has an obligation to provide reasonable accommodation and that it constitutes inappropriate influence to refuse medical treatment due to mental capacity. Lastly, I analysed and discussed, once again, if an uninformed consent could constitute a forced bodily intervention. I also discussed this issue in relation to what risks persons with reduced decision-making capabilities are allowed to take. Finally, by using a bridge-metaphor I illustrated the dangers of having unclear obligations for the healthcare personnel as it creates opportunity for personal interpretations.