#1708 - Consent To Treatment And Its Limits - Medical Law

Consequences of acting without consent

Doctor acting in “Best interests” is not enough – patient must consent

• Technically, a doctor who intentionally or recklessly touches a patient should be subject to liability in two ways:

  • Criminal proceedings for battery

    • Although this is unlikely unless it was malicious – e.g. sexual assault

  • Tort suit

    • For battery

      • Question is very patient focused – did patient consent to touching?

    • Or for negligence

      • Here, even though there might have been apparent consent, the doctor acted negligently in either

        • Failing to provide information, or enough information, for the patient to make an informed choice

        • OR doctor misrepresented the treatment/patient’s condition

      • Question focused on whether doctor performed as reasonable doctor should of done.

Some important differences between tort of battery and tort of negligence

• Where a patient agreed to an operation with very limited information...

  • Negligence focuses on the question of whether the medical professional acted in accordance with an accepted body of medical opinion

    • Question to ask = Bolam

      • Was the information provided by the professional the amount of information considered appropriate by a respectable body of medical opinion?

    • And also Chester v Afshar

      • Had the patient had the information they did not receive, they would still not have gone ahead with the procedure

  • Whereas battery looks at whether the patient consented or not

    • Question to ask = Chatterton v Gerson [1981]:

      • Did the patient consent in broad terms to the nature of the procedure, given their limited understanding of what was entailed?

• Relevance of what would have happened had information been received – needs to be some harm

  • In negligence, it would be a defence to say that the patient would have still consented even if they had heard the extra information that was not disclosed

  • However, it will not be a defence to battery if it was established that the patient did not consent

• Punitive damages can be awarded in a battery case, but not a negligence case

• Losses

  • In negligence, only foreseeable losses can be claimed

  • In battery, all losses flowing from the operation w/o consent will be recoverable

• Battery needs touching – negligence does not

The legal “flak jacket” – how to avoid becoming liable for tort of battery or negligence

Re W:

• Held

  • In order to be acting lawfully when touching a patient, one of three things are needed:

    • The consent of the patient

    • The consent of someone who is authorised to consent on the patient’s behalf (e.g. parent consenting for treatment to child)

    • The defence of necessity

1. Actual Consent of the Patient

1. The person is competent enough to give consent (or refuse it)

• The presumption in favour of capacity and against judgements on age/appearance

  • MCA s.1(2):

    • A person must be assumed to have capacity unless it is established that he lacks capacity

  • MCA s.2(3)

    • A lack a of capacity cannot be established merely by reference to

      • (a) a person’s age or appearance, or

      • (b) a condition of his, or an aspect of behaviour, which might lead others to make unjustified assumptions about him

• When someone lacks capacity

  • MCA s.2(1): Some kind of impairment of the mind/brain

    • A person lacks capacity in relation to a matter if at the material time, he or she is unable to make decision for himself in relation to the matter

      • Because of an impairment of/disturbance in function of the mind or brain

      • Code of Practice: Dementia, severe learning difficulties etc.

  • MCA s.3(1): A person can’t make a decision if they’re unable to do any one or more of these four:

    • (a) to understand the information relevant to the decision

    • (b) to retain that information

    • (c) to use or weigh that information as part of the process of making the decision

    • (d) to communicate his decision (by talking, sign language, or any other means)

  • MCA s.2(2): BUT a person is not to be regarded as unable to understand the information relevant to a decision

    • If he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances

      • (e.g. simple language, visual aids, other means)

• Herring: Competence is “issue specific”

  • Gillick v West Norfolk and Wisbech AHA [1985]:

    • Lord Fraser:

      • It is absurd to suggest that a 15 year old could not effectively consent to have a medical examination of some trivial injury to his body or even to have a broken arm set

        • For more complex procedures, this may not be the case.

      • However, providing their capable of understanding what it proposed

        • and of expressing his or her own wishes,

          • I see no good reason for holding that he or she lacks the capacity to express them validly and effectively

  • Re MM (An Adult) [2007]: MM suffered from paranoid schizophrenia, with a limited insight into her illness, with a low IQ and having been abused by her elder brother while she was 13. She had shacked up with KM for around 15 years – a drunk and violent man. She ran away from several placements and was then put in to a secure LA placement.

    • Munby J:

      • Capacity is issue specific – someone may have capacity for some activities but not for others

      • But capacity is not merely issue specific in relation to different types of transaction;

        • capacity is also issue specific in relation to different transactions of the same type.

          • Thus a vulnerable adult may have capacity to consent to a simple medical procedure but lack capacity to consent to a more complex medical procedure

  • Herring: Therefore while a person might be incompetent over one issue, they should not be treated as “simply incompetent” on all issues

    • Whether someone does or does not have capacity is issue specific – it will vary from what it is that is to be decided

      • A person might lack capacity to make a will, but still have capacity to know whether they want a cup of tea

      • Previous law just said it was all or nothing – capacity on all issues or none at all.

• Unwise decisions do not per se suffice to show a lack of capacity

  • MCA s.1(4)

    • A person is not to be treated as unable to make a decision merely because he makes an unwise decision

    • Herring: But doesn’t mean can’t take into account that decision is unwise... might be able to use it in conjunction with other evidence (e.g. also got some dementia and difficulty understanding as well)

  • Re B:

    • Held

      • A person is not to be considered incompetent because he makes an irrational decision

        • Unless the irrationality shows that the patient is unable to actually weigh up the decision

      • Doctors must now allow their strong disagreement or emotional reaction with the decision of a patient

        • cloud their judgement in answering the question whether the patient has the mental capacity to make a decision

• 2. The person is sufficiently informed

  • [see other notes]

• 3. The person is not subject to coercion or undue influence

  • Re T [1992]: T had been a Jehovah’s witness, but had not become a member as an adult. She was injured in a car crash, and needed a blood transfusion. When her mother, a committed Jehovah’s witness, visited, T “out of the blue” refused treatment. T’s father and boyfriend argued her lack of consent wasn’t her own.

    • Lord Donaldson:

      • A special problem may arise if at the time the decision is made, P has been subjected to the influence of some 3P.

        • P is entitled to receive and indeed invite advice and assistance from others in reaching a decision, particularly from members of the family.

          • But the doctors have to consider whether the decision is really that of the patient.

      • It matters not how strong the persuasion was, so long as it did not overbear the independence of the patient's decision.

• 4. Consent is for the treatment in question and has not been withdrawn

  • Precision of consent

    • Generally speaking , consent for one procedure is not consent for another

      • However, consent need not be express, it can be implied

      • And if there is a medical emergency requiring a medical procedure during the course of an operation

        • Then the doctor can operate without consent based on the defence of medical necessity

  • Withdrawal of consent

    • DoH Guidance:

      • A person with capacity is entitled to withdraw consent at any time, including during treatment

      • At that point, the practitioner if at all possible must stop the procedure, establish the person’s reasons, and explain the consequences of not completing it

        • An apparent objection may be a cry of pain rather than withdrawal

          • And appropriate reassurance may enable the practitioner to continue with the person’s consent

      • If the practitioner cannot stop at that point as it would put the person’s life at risk

        • The practitioner may be entitled to continue until that risk no longer applies.

How easy is it to show capacity?

• Where the decision appears unwise

  • Re C(Adult: Refusal of Treatment) [1994]: C was a patient at Broadmoor and suffered from paranoid schizophrenia. He believed that he was a great doctor with 100% success rate. He got gangrene in his foot and was informed there was an 85% chance of death without amputation, but refused as he believed God did not want him to have it amputated.

    • Thorpe J:

      • The presumption that C. has the right of self-determination has not been displaced.

        • Although his general capacity is impaired by schizophrenia,

          • it has not been established that he does not sufficiently understand the nature, purpose and effects of the treatment he refuses

        • Indeed, I am satisfied that he has understood and retained the relevant treatment information,

          • that...