Medical Law Consent, Battery: Information and Voluntariness
Prof Orla SheilsDepartment of HistopathologyTCD
Principal IssuesImportance of consent morally and legallyElements of batteryElements of consentDistinction between battery and negligenceNature and purposeRelevance of fraud
Purpose of the law of consentTo protect the ethical principle that each person has a right to self-determination and is entitled to have their autonomy protected.Breach of this amounts to the tort of battery and may constitute a criminal offence.Trespass to the body
Schloendorff v Society of New York Hospital (1914) Justice CardozoEvery human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patients consent commits an assault for which he is liable in damages.
Right to self determination includes right to refuse treatment or select an alternative.
ECHRForced treatment against wishes would breach a persons rights under article 3 not to be subjected inter alia to inhuman and degrading treatment
Issues of consentCrime of batteryTort of batteryTort of negligence
Informed consent means the knowing consent of an individual or their legally authorised representative, so situated as to be able to exercise free power of choice without undue inducement or any element of force, fraud, deceit, duress or any form of restraint or coercion.
Issues of ConsentA person gives informed consent when, with substantial understanding and in the substantial absence of control by others, they intentionally authorise a professional to do something.
Range of ethical concepts used to justify informed consent: self-determination, dignity, autonomy, freedom, privacy.
Most influential concept in writing on consent: autonomy. Self-determining moral agentMoral claim that it is wrong to treat others in such a way that prevents them from shaping their own lives in accordance with their own intentions, plans and values.
Consent in medical procedures can usually be obtained by presenting the patient with a consent form to sign.
The consent form exists to demonstrate that a process of communication has taken place during which the patient has learned about his/her illness and treatment options and reached a point where they can decide, on an informed basis to proceed with, restrict, or decline the proposed intervention.
The doctrine of consent operates to reflect the self-autonomy of the patient.In many jurisdictions it is now regarded as a fundamental human right.In Ireland, this fact is well established. The Supreme Court has stated that: "The requirement of consent to medical treatment is an aspect of a person's right to bodily integrity under Article 40, s. 3 of the Constitution" (In re a Ward of Court  2 IR 79 at 156, Denham J.).
The Supreme Court in the same case made it clear that: "If medical treatment is given without consent it may trespass against the person in civil law, a battery in criminal law and a breach of the individual's constitutional rights" (ibid).Thus, before undertaking medical treatment of any sort whatsoever, a healthcare professional must obtain the consent of the patient.
Legal requirements: focus on disclosure and comprehension. Influenced by risk management, litigation fears, avoidance of harm, protection of rights.
Moral elements: From the moral viewpoint informed consent is more concerned with the choices of the patient and maintaining trust in the doctor-patient relationship. Legal consent is concerned with protecting bodily integrity, avoiding injury and risk.
For consent to be valid a patient must have capacityit must be voluntarily given, there should be no duress Information regarding risks, benefits, side-effects and alternatives must be given so that the patient is able to make an informed decision as to whether or not to proceed with treatment.
Five elements are crucial in the concept of informed consent:DisclosureComprehensionVoluntarinessCompetenceAgreement.
Central issues for consentIs the person competentIs the consent voluntaryIs it adequately informed
CapacityPatient must be able to communicate their choice. Capacity is decision-specific. A patient should not be regarded as lacking capacity merely because they do not take their doctors advice or make a decision that would ordinarily be regarded as imprudent
Types of consentExpressPatient explicitly agrees to what is proposed by doctor
Brushett v Cowan (Newfoundland CA)Muscle and Bone bxAlleged no consent for bone bxHeld-bone bx was part of the ongoing investigation fell within express consent given.
Pridham v Nash Exploratory laparoscopic procedureAdhesions lysedConsent to investigative procedureLysis found to be necessary, additional, curative procedurePerson must be informed in broad terms of the nature of the intended procedure.
Types of consentImpliedImplied consent becomes a form of estoppel whereby a patient, although he did not actually agree to an intervention, is estopped from denying he did so.Actions speak louder than wordsIf a person opens their mouth and sticks out their tongue, they cant complain if a doctor depresses tongue with a spatula.OBrien v Cunard SS Co (1891)Small pox vaccination
Implied ConsentWhile implied consent is one possible justification for an intervention it is not necessarily the most appropriate.
Doctors justification for treating an unconscious patient must rest in the doctrine of necessity recognised by HoL in Re F (1990)
INFORMED CONSENT Express or ImpliedPatients must be allowed to decide whether they agree to a proposed treatment even if a refusal will lead to their harm. Similarly, patients must be allowed to withdraw consent to treatment at any time.
INFORMED CONSENT Exceptions to the Rule
It is generally acknowledged that there are two exceptions to the common law rule:Therapeutic Privilege - this arises where the failure of the doctor to disclose is justified in the interest of the psychological wellbeing of the patient. This limited disclosure should be a very rare event and that the reasons not to disclose should be recorded in the patient's notes.The mere fact that the patient might become upset by hearing the information, or might refuse treatment, is not sufficient to act as a justification for nondisclosure of information.
Emergency - in an emergency life-threatening situation where the patient is unable to consent or to appreciate what is required a healthcare professional, acting in the best interests of the patient, may administer the necessary medical treatment to save the life or preserve the health of the patient without formal consent. However, the treatment given should be only that which is immediately necessary for the patient's welt being. If some coincidental and non-urgent problem is encountered during an emergency procedure it should not be dealt with until consent can be obtained at a later time.
Withholding informationA patient may wish not to participate in the decision making process concerning their treatment or care.If such a situation occurs the patient, if willing, should be asked to sign a waiver stating that he/she does not wish to discuss the matter following advice being offered.If the patient does not sign a waiver then their request not to be given additional information should be recorded in the patient's record.
Who can obtain Consent from Patients or Guardians?Permitting junior doctors to obtain informed consent can lead to problems. Junior doctors may not have the necessary knowledge or experience to be in a position to explain the options available for treating the condition in question, the likely outcome and the risks attached to each one. Someone suitably qualified or experienced to understand the proposed treatment and risks involved should secure consent. Healthcare professionals have an obligation not to delegate responsibility for securing consent to someone they know or suspect to be under-qualified for the task.
What Patients should be toldInformation which the patient needs to know before deciding whether or not to consent to treatment:Details of the diagnosis and prognosis, and the likely prognosis if the condition is left untreated.Uncertainties about the diagnosis including options for further investigation prior to treatment.
The purpose of a proposed investigation or treatment;details of the procedures or therapies involved, including subsidiary treatment such as methods of pain relief, and how the patient should prepare for the procedure.Explanations of the likely benefits and the probabilities of success and a discussion of any serious or frequently occurring risks* and of any lifestyle changes which may be caused by, or necessitated by, the treatment.Advice about whether a proposed treatment is experimental.
How and when the patient's condition and any side effects will be monitored or re-assessed.A reminder that patients can change their minds about a decision at any time and that they always have the right to a second opinion.Give the name of the doctor who will have the overall responsibility for the patient and explain, where appropriate, that no guarantee about who will carry out the procedure can be given.Where applicable, details of costs or charges which the patient may have to meet.
Be aware of the distinction, which the Courts have made in recent years in elective and non-elective surgery. In the case of elective surgery the duty to discl