#17385 - Autonomy, Consent, Capacity - Medical Law

AUTONOMY, CONSENT, CAPACITY

Abbreviations

• MP – Medical Practitioner

• P – Patient

• D – Doctor

• AD – Advance Directive

• [ ] – my own comments/opinions

General Notes

• Interesting links between overriding autonomy in the present to protect your future autonomy, and ADs! (from the Maclean article + Heywood)

  • ADs essentially override future autonomy, to protect your present autonomy (at the time you make the AD)

  • If you conceive of life as a narrative (Dworkin), then it’s justifiable for a person to exercise his present autonomy to limit his future autonomy, since the person whom the person will develop into depends on his current choices, and there’s no reason why he can’t mould that chapter of his life

    • This means (a) not justifiable to intervene with even irrational decisions of an autonomous person (with capacity) that threaten to harm his future autonomy and (b) justifiable to follow ADs!

• This leads on to the STRONG view: that paternalism is a GOOD thing

  • Honestly the Courts are probably better equipped to decide for us

  • Think about the number of mistakes we make in our day to day decisions

• Think about autonomy beyond the Patient

  • E.g. Doctor’s autonomy! To withhold treatment

Herring, Chapter 4: Consent to Treatment

Introduction

• It is the patient, rather than the doctor, who has final say about proposed treatment can go ahead

  • Jackson J, Heart of England NHS Trust v JB: “anyone capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone. In the absence of consent any invasion of the body will be a criminal assault. The fact that the intervention is well-meaning or therapeutic makes no difference”

• Consent is required, EI there’s strong evidence that procedure is the best interests of the patient

  • St George’s Healthcare NHS Trust v S 1998

    • Facts: woman in labour was told she needed a C section and that, without such an operation, she and the foetus would die. Operation was carried out against her will

    • Held: unlawful. Great weight was placed on the importance of the right to bodily integrity. Not even the fact she and the foetus would die without the operation provided a sufficiently good reason to justify carrying out the C section

• It does not follow that if a patient wishes to receive treatment, he/ she must be given it

  • R (Burke) v GMC

    • “Autonomy and the right of self-determination do not entitle the patient to insist on receiving a particular medical treatment regardless of the nature of the treatment”

Consequences of treatment without consent

• Starting point: healthcare professional who intentionally or recklessly touches a patient without his or her consent is committing a crime (battery) and a tort (trespass to the person and/ or negligence)

• To be acting lawfully in touching, professional needs a defence:

  • (i) consent of patient

  • (ii) consent of another person who is authorised to consent on the patient’s behalf

  • (iii) a specific defence in common law or statute

Criminal law and the non-consenting patient

• Technically, a medical professional who intentionally or recklessly touches a patient without consent could be charged with criminal offence of battery

  • But very rare, usually occurs only when professional was acting maliciously

• Potts v North West Regional Health Authority

  • Facts: woman consented to the giving of what was described as a routine postnatal vaccination. In fact, it was a long-acting contraceptive

  • Held: not consented to battery

• R v Tabaussum

  • Facts: women agreed to breast examinations on the understanding that they were being performed for educational purposes, whereas they were actually for D’s sexual pleasure

  • Held: deception either as to the nature or quality of the act could negate consent

    • Although act of touching was consented to, the quality of the acts was different

    • Touching motivated by sexual purposes has different quality than touching for non-sexual purposes

• R v Richardson

  • Facts: R had been removed from the list of the dental register, but continued to provide treatment to the patients. The patients had not been deceived either as to the nature nor identity of the person. Their mistake was as to her attributes

  • Held: deception as to identity of person providing the treatment can negate apparent consent, but a deception as to qualities of the person does not

    • But criticised on basis that a person receiving medical treatment may be more concerned about medical qualification of the individual than their identity

The law of tort and the non-consenting patient

• Proceedings in tort usually brought under negligence. Tort of battery has limited role

  • Border v Lewisham and Greenwich NHS Trust

    • Facts: doctor inserted an IV tube against the wishes of the patient

    • Dealt with as a negligence case although it could’ve been seen as battery

• Maclean: suggests 2 reasons for the preference for negligence

  • (i) tort of battery has strong overtones of a criminal offence. Where it has been found that tort of battery was committed, very likely a crime has been too

  • (ii) use of negligence gives judges greater control over the scope of the tortious liability because, they can determine whether or not doctor was acting reasonably (Bolam test)

    • Under tort of batter, if patient was not consenting, liability arises even though docyor may have been acting responsibly

• Important differences between tort of battery and negligence

  • (i) negligence focuses on question of whether the medical professional acted in accordance with an accepted body of medical opinion, whereas battery focuses on question of whether patient consented

    • E.g. where patient agreed to operation after being given limited info: question of whether information provided was considered appropriate by respectable body of medical opinion VS whether consent in broad terms had been given

    • Under battery, protection more focused on protection of patient’s rights to make decisions about his or her treatment, while negligence approach is focused on ensuring doctors follow an established body of medical opinion

  • (ii) negligence: patient must suffer harm, otherwise only nominal damages

    • VS battery: no need to show loss because battery will be in itself a legal wrong, but damages will be low

    • Ms B v An NHS Trust: when woman was given life-supporting treatment against her wishes, only 100 awarded for the battery

  • (iii) defence to negligence claim based on non-disclosure of information to show that if fully informed, patient would have consented to the operation he/ she received no harm

    • Not a defence in a battery claim

  • (iv) punitive damages can be awarded in a battery case, but not a negligence case

    • If punitive damages are awarded, professional will not only have to pay for losses suffered by C, but judge can also award further sum by way of punishment

  • (v) in a battery case, all of the loss flowing from the operation performed without consent can be recovered in a damages reward, but in a negligence case can only claim foreseeable losses

  • (vi) battery is committed only if there is a touching. So giving a patient a pill to take might not amount to a battery, but could involve negligence

  • (vii) contributory negligence is not a defence to a battery, although it is a claim for negligence

Who must provide the consent?

• Adults with capacity

  • If patient is a competent adult, only they can consent

  • No doctrine of consent by proxy in English law – e.g. husband having power to decide for wife

  • But delegated consent is presumably permissible, although there’s little legal authority

    • i.e. “Doctor, give me whatever treatment you think is best”

  • Competent patient can provide an advance directive; i.e. a document that sets out to what treatment a patient would or would not consent to in the event of loss of capacity

• Adults lacking capacity

  • Where lacking, he or she can be provided with treatment that is in his or her best interests under Mental Capacity Act 2005

  • There are some ways in which someone, fearing that they are about to lose capacity, can arrange for somebody to have decision-making power for them

    • MCA 2005 enables a competent adult to create a lasting power of attorney, which enables its done to make decisions on P’s behalf when they P loses capacity

  • Act also allows competent person to create advance decisions rejecting treatment in the event that they lose capacity

• Children lacking capacity

  • MCA 2005 does not apply to children. If child lacks capacity to consent, then consent can be provided by anyone with parental responsibility for the child

    • All mothers have parental responsibility

    • Fathers who are married to mother/ registered on child’s birth certificate do, but will otherwise need to enter into parental responsibility agreement with mother or apply to the court for a parental responsibility to residential order

  • Even if those with parental responsibility do not consent, a doctor may still be authorised to treat child by order of the court or, in an emergency, under the doctrine of necessity

    • If issue comes to court, it will take into account parental wishes, but will ultimately make order based on welfare of the child

• Children with capacity

  • If child is mature enough to consent, then he or she can provide effective consent to treatment

  • But this doesn’t mean those with parental responsibility cannot make decisions for the child

    • Doctor can treat a child with capacity who is objective if they have parental consent

What is consent

• Must...