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Consent To Treatment And Its Limits Notes

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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: o Criminal proceedings for battery
? Although this is unlikely unless it was malicious - e.g. sexual assault o 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 o Failing to provide information, or enough information, for the patient to make an informed choice o 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... o 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 o 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 o 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 o 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 o In negligence, only foreseeable losses can be claimed o 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:


o 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 o MCA s.1(2):
? A person must be assumed to have capacity unless it is established that he lacks capacity o 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 o 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. o 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) o 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" o 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 o For more complex procedures, this may not be the case.

However, providing their capable of understanding what it proposed o and of expressing his or her own wishes,

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