Consent To Treatment And Its Limits Notes

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...

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