#5356 - Consent To Treatment And Trespass - Medical Law

1. Trespass to the Person

• Chatterton v Gerson [1981] 1 All ER 257: P went to see doctor because of pain surrounding scar; D undertook an operation. P later returned for second operation (same again) and was not told of the risks. When suffered immobility claimed trespass to person and negligence; said would not have gone ahead if knew of the risks. Bristow LJ:

  • Consent must be real; as soon as it is shown that it is unreal there is a claim in trespass to the person.

  • Once the patient is informed in broad terms of the nature of the procedure which is intended, and consents, it is real, and the cause of the action on which to claim for failure to go into risks is negligence, not trespass.

    • In this case P knew of the nature of the injection to be given and therefore gave real consent.

  • Getting the patient to sign a pro forma expressing consent to undergo the operation 'the effect and nature of which have been explained to me' is no defence where that explanation has not, in fact, been given.

  • For a claim in negligence; in the medical context must be a greater failure than usual to succeed in breach of duty; then must further prove that would not have chosen to have had the operation if fully informed.

  • Comments on the negligence claim:

    • There is no obligation on the doctor to canvass with the patient anything other than the inherent implications of the particular operation he intends to carry out.

    • But, he ought to warn of what may happen by misfortune however well the operation is done, if there is a real risk of a misfortune inherent in the procedure.

    • In what he says any good doctor has to take into account the personality of the patient, the likelihood of the misfortune, and what in the way of warning is for the particular patient's welfare.

    • The condition of P’s leg and foot was not a possibility inherent in the operation of which the doctor should have warned her. The claim of negligence failed.

• R v Tabassum [2000] 2 Cr. App. R. 328: A asked women to take part in a ‘breast cancer survey’. Three women let him touch their breasts in belief that he had medical qualifications/training. Motivation was unclear. Rose LJ:

  • There will be no genuine consent if a woman is misled either as to the identity of the man who does the acts complained of, or as to the nature and quality of the act done.

  • The case of Richardson [dental treatment by a person whom has been struck off the register] proceeded only on the point of identity and not on the nature and quality of the act; distinguished on this basis.

  • Consent was given because theymistakenly believed that the defendant was medically qualified or, in the case of the third complainant, trained at Christie's and that, in consequence, the touching was for a medical purpose.

  • As this was not so, there was no true consent. They were consenting to touching for medical purposes not to indecent behaviour, that is, there was consent to the nature of the act but not its quality.

• Re T [1992] 4 All ER 649: T was injured in a car accident and needed a blood transfusion. After a private conversation with her mother (Jehovah’s Witness) T told staff that she used to belong a sect which forbade transfusions, and that she still maintained some beliefs in that respect and therefore refused consent. She signed a consent form, but was not told that the transfusion might be necessary to save her life. After application to court, at which point T being seriously ill, a judge ordered that a transfusion to save her life was permitted, given that in the prevailing life or death circumstances she had neither given nor refused consent. Appeal by T.

  • Lord Donaldson:

    • An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent or refuse medical treatment; although thought might be qualified where the woman was pregnant but expressed no further opinion on the point as that would be a novel case for the court.

      • Notes presumption of capacity; not a question of intelligence or education.

    • Treating a person without consent amounts to trespass; except where unconscious or unable to give consent in which case must be treated in accordance with best interests and clinical judgment;

      • Next of kin has no legal right to refuse or give consent in these cases of emergency.

    • Notes that case shows conflict between individual interest of self-determination and the interests of society in the preservation of life- in a case of doubt should resolve in favour of life.

    • A doctor should consider whether capacity is commensurate with the gravity of decision made.

    • When considering the effect of outside influences two aspects are very important:

      • The strength of the will of the patient e.g. where tired, in pain or depressed.

      • The relationship of the persuader to the patient e.g. parents, religious beliefs held by others.

    • The scope a refusal may not cover the decision which falls to be addressed; in a case where the refusal ceases to be effective a doctor must act in accordance with best interests and clinical judgement.

    • English law does not accept the transatlantic concept of 'informed consent' and it follows that it would reject any concept of 'informed refusal'. What is required is that the patient knew in broad terms the nature and effect of the procedure to which consent (or refusal) was given.

  • Butler Sloss LJ: Agrees with above but with a focus on the undue influence aspect; thought that the fact that T was in a weakened state of health and the power of mother/religion meant that refusal could not be deemed to cover a life or death situation; appeal therefore failed.

  • Staughton LJ: Cautious to note that where there is doubt over whether consent exists a decision of a doctor acting in good faith will be sufficient to discharge a claim; thinks that should come to the court first.

• S v St George's Healthcare NHS Trust [1998] 3 All ER 673: S was diagnosed with pre-eclampsia and advised that she needed to be induced. S fully understood the risks but rejected advice on the basis that she wanted her baby to be born naturally. S was then assessed by C under the Mental Health act and sent to a mental hospital for assessment. Subsequently and against her will she was transferred again. Application to the court to dispose with consent was successful and medical procedure took place. S self-discharged and applied for review. Judge LJ:

  • Starts from position that a person of sound mind is entitled to refuse treatment; respect for autonomy.

  • A 36 week old fetus is certainly not nothing; but, whilst pregnancy may increase the responsibility of the mother it cannot diminish her right to self-determination; although human, its rights cannot prevail over hers.

    • The right to make a decision is not diminished simply because it appears to be morally repugnant.

  • The Mental Health Act cannot be deployed to achieve the detention of an individual against her will merely because her thinking process is unusual and irrational, and contrary to the views of the overwhelming majority.

  • A woman detained under the Act for mental disorder cannot be forced into medical procedures unconnected with her mental condition unless her capacity to consent to such treatment is diminished.

  • For the purposes of s 2(2)(a), detention must be related to or linked with mental disorder. Treatment for the effects of pregnancy does not provide the necessary warrant.

  • On the basis of the material, the doctors were entitled to conclude that S was suffering from mental disorder.

    • Her refusal of treatment which would assist both her and her baby was unusual and unreasonable.

    • Unassisted by human hands, nature's course involved the risk of death or disability for herself and her baby. She was profoundly indifferent to these consequences; an abnormal state of mind.

      • Each doctor diagnosed depression.

    • It was a view based on a report of earlier depression from another doctor who knew S and their own lengthy examination and discussion with her. Each completed the prescribed form because she believed that S 'was suffering from mental disorder' which warranted her admission for assessment and set out her reasons.

  • Notwithstanding our view that the requirements of s 2(2)(b) might well have been fulfilled, the cumulative grounds prescribed in s 2(2)(a) were not established. Therefore the application for admission was unlawful.

  • In principle a patient may remain competent notwithstanding detention under the Mental Health Act; if the patient is competent and refuses consent to the treatment, an application to the High Court for a declaration would be pointless. In this situation the advice given to the patient should be recorded.

  • If the patient is incapable of giving or refusing consent, either in the long term or temporarily, the patient must be cared for according to the authority's judgment of the patient's best interests; unless there is an advance directive, in which case should be treated accordingly, unless there is reason to doubt its reliability.

Mental Health Act 1983 (as amended by Mental Health Act 2008) (in outline only)

(ii) Mandatory treatment for addiction

• Winnipeg Child and Family Services v G(DF) [1997] 3 SCR 925 (Supreme Court of Canada): R pregnant with child 4, and addicted to glue sniffing. As a result of addiction two previous children were permanently disabled and being cared for by the state. Judge ordered that she...