LAW AND MEDICINE 1

The general principle is valid consent must be obtained before medical treatment can commence. In Allen v New Mount Sinai Hospital [1980], J linden stated ‘consent is not a mere formality; it is an important individual right to have control over one’s body, even where medical treatment is involved.’ In Schloendorff v society of New York Hospital [1914], Cardozo J made a statement “Every human being of adult years and sound mind has a right to determine what shall be done and a surgeon, who performs an operation without his patient’s consent, commits an assault.”

There must be some lawful justification for a medical procedure, which would otherwise constitute the tort of battery. Battery is a form of trespass, and as such, it is actionable par se. A battery consists of the infliction of unlawful force on another person.  

It is sometimes stated that where the patient is incapable of consenting, an effective consent may be given by his/her spouse, or by some near relative. Nevertheless, this can be argued, as there is no general doctrine whereby a spouse or relative is empowered to give a legally effective consent to medical procedures to be carried out on an adult. There are circumstances where doctors are justified in proceeding without the consent of the patient.

Tom was unconsciousness on arrival and was in critical condition where his injuries were life threatening. Tom is considered temporally incompetent because he was unconscious on arrival at the hospital. Therefore, he could not consent to treatment at the time of the accident. No one can consent on Tom’s behalf because he is an adult; the authority for this is Re F (Mental Patient: Sterilisation) [1990]. In this case, the House of Lords said no authorisation on one’s behalf can be accepted regarding consent for an incompetent adult. Because Tom is unconscious and unable to give consent, then it is lawful at common law to give the patient treatment without their consent.

However, the treatment must be in the patients ‘best interests’. The best interests test remains the most appropriate standard for providing treatment for patients who are incompetent and have left no ascertainable views as to how they wish to be treated. To identify what is considered to be in the patients ‘best interest’, the Bolam Test comes into practice.

The Bolam Test originates from, Bolam v Friern Hospital Management Committee [1957]. The principle stated in this case is according to which a professional person will not be guilty of negligence if he can show that he has acted in accordance with practices accepted by a substantial, responsible body of persons skilled in his field. The test applies to all who exercise or profess to exercise a particular skill, and its application does not depend on the actual possession of a relevant qualification. This test acts on what is considered in the patient’s ‘best interests’, therefore an objective test.  

In an emergency situation, where the patient is unconscious and cannot consent, doctors have to have a lawful authority to carry out any procedure without the patient’s consent. One possible justification has been canvassed in relation to emergency procedures is implied consent. The argument is that the unconscious patient, although unable to consent, would very probably consent to emergency treatment if he were able to do so and so his consent can be implied. In Mohr v Williams [1905], the patient brought a claim against the defendant for trespass. The defendant operated on her right ear although he did not have the consent to do so. The Court held that the condition of the right ear was discovered by an unauthorised examination and there was no implied consent.

The other possible basis for justifying emergency treatment without consent is the principle of necessity. The discussion of defence of necessity came in the case F v West Berkshire Health Authority [1989]. It proceeded on the assumption that it applied in any situation where an adult was incapable of giving valid consent to medical treatment, whether the capacity was permanent or temporary. The treatment of a temporarily incapacitated patient in an emergency will be lawful if it is in the best interests of the patient, that is if it is carried out in order to save his life or improve his life. This again will be measured by reference to the Bolam test.

Join now!

In Re MB (An Adult: Medical Treatment) (Caesarean Section) [1997], a pregnant woman gave consent for a caesarean section, at the last minute she panicked and refused to go ahead with the caesarean section because of a phobia she had with needles. The Court held that she was temporally incompetent, and that the needle phobia had robbed her of any decision-making ability. The operation would have carried out without the patient’s consent under the doctrine of necessity.

Mr Botchit carried out an emergency operation on Tom’s arrival at the hospital. Tom was in a state of critical ...

This is a preview of the whole essay