Consent Ii Notes

Introduction

Learning Objectives: Understand the operation of giving consent within a medical context.

Learning Goals:

What happens at law when a patient cannot give consent?

What factors determine whether a patient has given consent voluntarily?

Central Issues:

The principle of patient autonomy means that a competent adult patient has the right to refuse medical treatment, even if their reasons are bizarre, irrational or non-existent, and even if refusal might lead to death.

Under the Mental Capacity Act 2005, adults who lack capacity should be treated in their best interests.

Parents normally give consent to their children’s medical treatment. If there is a dispute, or the treatment is controversial, the court has wide powers to authorise the medical treatment of minors in their best interest.

Mature minors can acquire the right to consent to treatment, but they do not necessary have the same right to refuse treatment.

The patient’s consent must have been given voluntarily; that is, it must not have been vitiated by undue influence or duress.

The consent requirement

For consent to be valid, there must be a capacity to consent, a voluntary consent, and an understanding in broad terms of what is being consented to (which was dealt with last week). Consent has a distinct moral, clinical and legal function.

Civil Law

Provided a person consented to the treatment she received, there could be no action in tort for unlawful touching. An action in battery would be possible only if the patient can establish that her apparent consent was not real, perhaps because she was not what she was consenting to,or because she was coerced into giving consent. In practice, such actions are rare.

Form of consent

Consent to medical treatment does not need to be in writing (except where required by statute). For most routine medical treatment the patient’s consent can be inferred from their behaviour. In some ways, the patient seeking medical treatment shows their willingness to be treated.

Where the treatment is surgery, it is good medical treatment (albeit not a legal requirement) to obtain the patient’s consent in writing. This consent is not a contract between the doctor and patient. The patient’s consent must be ongoing throughout the treatment, and the patient is free to withdraw their consent at any time. Signing a consent form does not affect the patient’s right to refuse treatment.

The Principle of Autonomy

The principle that a competent adult must not be treated without consent protects both her autonomy and integrity. It is settled law that, if an adult patient has capacity, they are free to refuse medical treatment, even if not in their best interests (Airedale v Bland). Indeed, these rights to refuse even exist where the reasons are bizarre, irrational or non-existent (Re T).

In addition to the common law, a patient’s right to make their own decisions is also protected by the Human Rights Act 1998. Article 3 incorporates a right to be free from inhuman and degrading treatment. Article 8 (respect for private and family life) incorporates a right to make important decisions about what happens to one’s body. Article 2 also provides that everyone’s life shall be protected by law. Often the question for the courts is whether it would be justified and proportionate to overrule the patient’s rights under Articles 3 and 8 to reinforce their right under Article 2.

Recall that it was previously discussed the criticisms of respecting autonomy, especially where the patient’s refusal to get treatment affects people other than the patient. At times then, there may be a tension between the patient’s legal rights and their moral obligation to others. Taking this even further, Glick argues there might be dangers in respecting the short-term autonomy of a frightened and distressed patient: they are prone to making hasty tragic decisions which they come to regret later after careful consideration. Even the most devoted advocates of autonomy must recognise that a patient who is frightened and distressed may not be fully autonomous. In this regard, recognising individual vulnerabilities at certain times does not result in unwarranted reversion back to paternalism.

Pregnant woman’s autonomy

In Re T, Lord Donaldson noted one possible exception to the right to refuse treatment: the case where the woman is pregnant and the refusal of treatment could lead to death of the foetus. This situation arose in Re S, where S refused a caesarian on religious grounds. S’s competence was not in doubt. An emergency application was made, and after an ex parte hearing, a declaration was granted that the operation be lawful. However, this case is not of any weight any more, as subsequent cases have confirmed that pregnancy does not diminish the competent adult’s right to refuse unwanted medical treatment. From the comments of Judge LJ in St George’s Trust v S, the unborn foetus is not a separate person from the mother, and so its needs for medical assistance do not prevail over the mother’s autonomy. Her right is not reduced or diminished merely because her decision appears morally repugnant.

Thorpe, writing extra-judicially, has suggested that it may be in practice easier for an appellate court to confirm the primacy of autonomy, after the operation has been carried out successfully, than it was for the judge who had to make that decision in the heat of the moment, when lives were in immediate danger.

Incapacity

If a patient has capacity, then, unless she has been sanctioned under the Mental Health Act 1983, her refusal of treatment is decisive. In contrast, if a patient lacks capacity, they can be treated without consent. In this regard, there are two possible approaches to the assessment of capacity:

According to the status approach, some categories of patients lack capacity because of their status (e.g. age) regardless of their actual decision making ability. On this approach, all under 18s would be treated as though they lacked...

Buy the full version of these notes or essay plans and more in our Medical Law Notes.