A more recent version of these Consent To Treatment And Trespass notes – written by Oxford students – is available here.
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CONSENT TO MEDICAL TREATMENT ; TRESPASS TO THE PERSON
1. Trespass to the Person (a)
Battery and absence of consent to medical treatment:
Chatterton v Gerson  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: o Consent must be real; as soon as it is shown that it is unreal there is a claim in trespass to the person. o 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. o 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. o 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. o 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  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: o 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. o 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. o Consent was given because they mistakenly 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. o 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  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. o 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  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: o Starts from position that a person of sound mind is entitled to refuse treatment; respect for autonomy. o 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. o 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. o 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. o 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. o 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. o 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. o 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. o 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.
Mandatory treatment for mental disorders Mental Health Act 1983 (as amended by Mental Health Act 2008) (in outline only)
Mandatory treatment for addiction Winnipeg Child and Family Services v G(DF)  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 be placed in custody of health care centre until the birth of the child. Order was struck down by CA. Appeal by the agency to overturn the decision of the CA. o McLachlin J:
2 An order detaining a pregnant woman for the purpose of protecting her foetus would require changes to the law which cannot properly be made by the courts and should be left to the legislature.
? The issue is not one of biological or spiritual status, but of legal status; any right or interest the foetus may have remains inchoate and incomplete until the birth of the child.
? To allow the order would amount to radical change which would be fraught with difficulties and ramifications such as allowing a child to sue a mother for her lifestyle habits; where to draw the line?
? If it could be predicted with some certainty that all these negative effects of extending tort liability to the lifestyle choices of pregnant woman would in fact diminish the problem of injured infants, the change might nevertheless arguably be justified; thought that the case before him was not compelling.
? Changing tort to make a pregnant woman liable could be counterproductive:
* May tend to drive the problems undergrounds;
* Might persuade people who would usually have children to abort in the alternative.
? Also rejected submission that could be done under inherent jurisdiction of the court for similar reasons i.e. that would amount to an unwarranted extension of the law best left to Parliament. Major J: Thought that was appropriate to utilise the flexibility of the common law to meet the needs of the appeal; the rule that a fetus has no rights until born is based on rudimentary medical evidence; thought that could lay down a threshold for the point at which the court would interfere i.e. where will result in serious and irreparable damage which was justified on the basis that the woman had opted for pregnancy over abortion.o
2. Mental Capacity and Best Interests
Mental Capacity Act 2005 Code of Practice http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf
Re C (Detention: Medical Treatment)  1 WLR 290,  1 All ER 819: P diagnosed as schizophrenic and transferred to secure hospital. P had a gangrenous foot but refused to consent to amputation even though without his chances of survival were small. Consented to conservative treatment and then applied for an injunction to prevent amputation without his written consent. [Thorpe J]
o Prima facie every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death. o What matters is whether at that time the patient's capacity was reduced below the level needed in the case of a refusal of that importance. Some may involve a risk to life or of irreparable damage to health. Others may not. o P understood and retained the relevant treatment information, and in his own way believed it, and in the same fashion he arrived at a clear choice; he therefore has capacity to make this decision.
Re M  EWHC 2525 (Fam): A deputy appointed under s16 Mental Capacity Act applied to the court for permission to exercise a statutory will on behalf of incapacitated person (M). Munby J: o Thought that 2005 Act marked a radical change in that overarching principle is that something should always be in the best interests of the patient; for that reason any cases under the earlier regime are not relevant. o Makes following points:
? The statute lays down no hierarchy as between the various factors taken into account;
? Weight to be attached will depend on the circumstances of each case;
? May be one or several factors which are so magnetic in a case so as to be determinative of it;
? The weight attached to P's wishes will always be case and fact specific, should consider:
* Degree of incapacity;
* Strength and consistency of the views expressed;
* Possible impact on P of not giving effect to their wishes;
* Extent to which wishes are irrational or incapable of sensible implementation;
* Extent to which they can be accommodated within the best interests assessment.
? Best interests do not cease at death.
A Local Authority v Mrs A and Mr A  EWHC 1549 (Fam): LA sought a declaration that A (learning difficulties/low intelligence) lacked capacity to make a decision about contraception. Two children previously removed. New partner was suspected of putting pressure on A to stop taking contraception. [Bodey J]: o It is unrealistic to require consideration of a woman's ability to foresee the realities of parenthood, or to expect her to be able to envisage the fact-specific demands of caring for a particular child not yet conceived with unpredictable levels of third-party support.
? These issues are too remote from the medical issue of contraception.
3 o o
? Would move away from personal autonomy to social engineering. The test for capacity should be so applied as to ascertain the woman's ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment e.g. reason for contraception and what it does, different forms, advantages and disadvantages of each type, possible side effects, ease of change, effectiveness. The question is whether the influence of Mr A over Mrs A has been so overpowering as to leave her unable to weigh up the information and take a decision of her free will.
? On the balance of probabilities Mrs A has been put under very heavy pressure and conflict;
? In view of the completely unequal dynamic in the relationship between Mr and Mrs A, her decision not to continue taking contraception is not the product of her own free will. Any step towards long-term court imposed contraception by way of physical coercion, with its affinity to enforced sterilisation and shades of social engineering, would raise profound questions about state intervention in private and family life; refuses to make order as to A's best interests at this stage; application dismissed. Herring (2010) LJ 1066):
? It is surprising that Bodey J did not refer to MCA 2005, s5 which sets out the test to apply when deciding whether restraint should be used and asks whether the use of restraint is proportionate.
? In justifying reluctance to use force Bodey J explained this was not one of those cases where there are felt to be risks to physical or mental health through pregnancy, childbirth, or the removal of a child which is surprising given the physical trauma of birth, and the potential for grave emotional harm to the mother in subsequent removal of a child.
? What is particularly concerning in this case is Bodey J's failure to take into account Mrs A's views on contraception while she was competent.
* Under s 4 these are to be taken into account in assessing her current best interests.
* Before meeting Mr A she consented to the use of contraception.
* Pregnancy seems to offer little benefit to her.
? There is a real concern that here is a victim of domestic violence, whose husband is seeking to prevent her obtaining contraception, and the court is standing by.
? Bodey J made no mention of Mrs A's human rights under the European Convention on Human Rights. If his starting point had been a recognition of her rights to bodily integrity and protection from inhuman and degrading treatment, the end point might have been very different.
Re G (TJ)  EWHC 3005 (COP): Hearing which investigated whether payments to the adult daughter of C by way of maintenance for C, could be regarded as being in the best interests if G for the 2005 MCA. Morgan J: o Best interests is not defined; a court may find in an appropriate case that it is in P's best interests for P to act altruistically; the concept is not confined to self-interest. o The court is not obliged to give effect to the decision which P would have arrived at, if he had capacity. Although, in an appropriate case, a court could conclude that it is in the best interests of P for the court to give effect to the wishes which P would have formed on the relevant point, if he had capacity (substituted judgement) o It emerges that the principal justification for making the order for maintenance payments in favour of C, is that those payments would be what Mrs G would have wanted if she had capacity to make the decision for herself.
? This is essentially a substituted judgement;
? However, best interests does not exclude substituted judgement;
? Gives effect accordingly.
DL v A Local Authority  EWCA Civ 253: Appeal as to whether, in spite of the territory occupied by MCA 2005, a jurisdiction exists outside its borders to deal with cases of vulnerable adults who fall outside that act and which are determined under the inherent jurisdiction. Issue as to son unduly influencing elderly parents. o Jurisdiction does exist and is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because:
? Under constraint; or
? Subject to coercion or undue influence; or
? For some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. o The question of the class of decision to which any orders are directed will be a matter of application of the jurisdiction, and of proportionality, dependent on the facts of any given case (ensures Art 8 compatibility).
ZH v CPM  EWHC 604 (QB): Autistic boy at swimming pool staring at the water; after a period of time police officers were called, the situation escalating into a situation where ZH jumped into the pool, was later arrested and had epileptic seizures as a result of the stress. Jumped initially because of physical contact by a police officer. Claim was brought for battery and trespass to person. Sir Neilson:
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