Decisions made on behalf of those who lack Capacity (in the Medical Context) under the English and Nigerian Legal Systems

Abstract

It is a fundamental principle of medical law and ethics that a medical practitioner should obtain the informed consent of a competent patient before treating such a patient. This is in tandem with the ‘principle of autonomy’ (self-determination) and best interests of a patient as gone are the days when ‘a trust me, I’m a doctor’ approach justified the imposition of treatment on a patient. Operating on a competent patient without obtaining her or his consent would amount to a contravention of a patient’s right not to suffer torture or inhuman and degrading treatment. However, certain circumstances exist in the doctor-patient relationship wherein a patient lacks capacity to grant such consent to the medical professional – hence, the need for such consent to be given on her or his behalf in accordance to her or his best interests. This work therefore, considers how decisions made on behalf of those lacking capacity (in the medical context) under the English and Nigerian legal systems meet the needs of our contemporary societies with the aim of recommending the best practices for Nigeria as we strive to develop an efficient health care environment.

Keywords: Decisions, Lack of Capacity, Medical Context, English Law, Nigerian Law