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Chapter

Cover JC Smith's The Law of Contract

21. Capacity  

This chapter discusses the issue of capacity. The general rule is that contracts are valid but unenforceable on minors (persons under 18 years of age). However, they are enforceable against adults, and a minor can ratify a contract upon attaining the age of majority so that the contract is enforceable against both parties. At common law, mental incapacity is not by itself a reason to set aside a contract. But if the other party knows, or ought to know, of the mental incapacity, then the contract can be set aside. The Mental Capacity Act 2005 makes it clear that a person who lacks capacity must still pay a reasonable price for necessary goods and services.

Chapter

Cover Medical Law and Ethics

4. Consent to Treatment  

This chapter examines the legal and ethical aspects of treating a patient without consent. It considers the meaning of ‘consent’ and the position of patients who lack the capacity to consent. For children who lack capacity, consent involves a delicate balance between the rights of the children and those of their parents. For adults lacking capacity, the Mental Capacity Act 2005 has emphasized the ‘best interests’ test, but has largely left open the question of how a person’s best interests are to be ascertained. The chapter also considers what weight should be attached to advance decisions (sometimes called living wills).

Chapter

Cover Medical Law Concentrate

3. Consent  

This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery and how this applies to more recent cases. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant case law, including Gillick, which gave rise to the concept, are cited where appropriate.