It appeared the courts were reluctant to find HCW’s guilty of battery and more in negligence regarding inadequate information and advice. A non HCW committing the same act is guilty of battery, suggesting they have no business interacting with the patient this way. HCW’s therefore have certain privileges on their patients providing the patient fully understands what is going to be done and why.
How then does the Doctor decide how much information to tell the patient? The American courts state it is what the prudent and reasonable patient would require. English courts however adopted the Bolam test where reasonable medical opinion became the test of negligence, even if there was conflicting medical opinion stating they would not proceed in this manner. Providing some doctors would testify that a lack of certain information was standard practice, the courts were now unwilling to find any doctor guilty of negligence or battery. This effectively relinquished control of informed consent to the discretion of the medical profession.
In Siddaway the doctor omitted to tell a patient of a 1% risk of spinal damage in an operation. This was found to accord with a responsible body of neurosurgeons, passing the Bolam test expected by law, and a point upheld by majority in the House of Lords. They concluded that the patient did not specifically ask about all of the risks, and the doctor could not be expected to volunteer all of the information. Lord Diplock stated that patients cannot understand their own best interests if they are given all of the information. Some must be withheld for their own benefit to stop irrational refusal of treatment. In giving an example of significance as 10% risk of a stroke, Lord Bridge reflected a slight shift to the prudent patient test but in the end, paternalism through Bolam prevailed. The House of Lords were now also satisfied most doctors would volunteer information satisfactory enough to allow an informed choice. Patient autonomy therefore required the patient to be proactive enough to ask of the risks for themselves.
More recently there has been a liberal shift of attitudes in the Court of Appeal. Smith v. Tunbridge Wells HA upheld that a reasonable body of opinion agreed with the defendant. The judge however stated the failure to warn the patient of such risks was ‘neither reasonable nor responsible’, using the words of Lord Bridge from Siddaway.
The House of Lords seemed to have modified the Bolam test in 1997, allowing a judge to decide between two conflicting medical opinions if one was not logically defensible. Negligence could now be proven even if in agreement with Bolam. One drawback of Bolitho has been noted that such logically indefensible cases would be settled out of court without making a significant difference on negligence claims. Defendants must also prove they would have refused the treatment if properly informed. This does however signal a greater respect for patient autonomy, and allows the patient to decide what their best interests are (through the courts) rather than a panel of medical opinion. Patients were now calling for an idiosyncratic approach to deal with the information they would require. Doctors would have to assess each case differently and attempt to determine the amount of information the (prudent?) patient would want rather than by the previous paternalistic approach. After Bolitho the courts seemed to give patients their autonomy back from the doctors and the right to adequate information on treatment.
Refusal of Treatment
True autonomous consent requires 3 criteria:
- Did the patient have the legal capacity to consent?
- Was the consent based upon a knowledgeable choice?
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Was the consent given voluntarily?
Capacity usually comes into question only when a conflict arises between what a patient and a HCW believes is the best interest.
In Re T., Lord Donaldson declared ‘the right of the individual overrides the interest of upholding all human life – but in cases of doubt the resolution falls on the preservation of life.’ The grounds for going against the patient’s wishes were upheld due to impaired capacity, lack of information and undue influence or duress from the mother. This external influence effectively vitiated the patient’s autonomy.
Duress in the medical context however, could be hypothetically illustrated by the pressure on the patient of the consequences of refusal of a treatment, by difference to the doctor’s authority, or by a reaction to the stress of the condition or the medical environment. In this case the patient’s consent could also be seen as vitiated, and protecting the patient’s autonomy would hold the doctor liable in battery.
In Re C Thorpe J stated although one patient’s condition reduced his general capacity, ‘he understood and retained the relevant information..and..has the right to self determination.’ The Re C test was subsequently set out, acknowledging that a fully competent patient may not make the right medical choice for their own reasons:
- Could the patient comprehend and retain the necessary information?
- Was he able to believe it?
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Was he able to weigh the information balancing the risks and needs to arrive at the choice?
Re C then seemed to test whether the patent could embark on a particular enterprise rather than deciding their general capacity. In contrasting Re C and Re MB, the courts found it easier to see a distressed woman in labour incompetent over a man refusing treatment for his gangrene. This seems obvious when looking at the consequences. The hospital staff would have had to watch a woman and her baby die in agony over a collected man seeking alternative therapy. We see one case of the courts deciding in favour of the patient’s autonomy (Re C) and another siding doctor’s belief of best interests (Re MB).
Other cases involving non-voluntary caesarean section have later been found to be a trespass, it has been stated there is no valid reason allowing the foetus legal dominance over its mother, where the ‘view of the patient may reflect difference in values rather than an absence of competence’.
Capacity
In T v. T an abortion and sterilisation was authorised on a 19 year old girl with severe mental disabilities on the grounds that the doctor should be able to proceed with good medical practice if the patient was never able to give her consent.
Using T v. T and the Bolam test, the House of Lords allowed the sterilisation of another mentally ill woman. Here the court ultimately identified ‘best interests’ by siding with medical opinion. On one hand the patient may have actually wanted a child but on the other she could not possibly care for it. It is likely however that the patient’s carers were the ones bringing the case to court, with their ideas of what would be best interests rather than a doctor with an agenda. It could be argued that carers are more qualified to know a patient’s best interests when presented with the options. However, it could also simply have been to make the carer’s life easier by preventing such a pregnancy, or not having to deal with problems associated with menstruation.
Re S marked a significant change. The Court of Appeal overturned a trial judge who allowed S. to be sterilised. Medical witnesses produced a range of options with which the court decided the most fitting. Following this, to prevent each treatment of a mentally ill adult resulting in declaration, the high court issued procedures allowing treatment as a means of pain or illness alleviation. Boundary cases (extreme or irreversible procedures) should be referred to court.
Relieving pain or illness to comply with compulsory treatment under the Mental Health Act has been interpreted broadly in the high court. Detained under the Act, one judge saw force feeding a patient as a treatment for his personality disorder; stating the wrong of allowing a patient’s rights to overrule ‘ethical values and institutional integrity’. This contrasts with in B v. an NHS Hospital Trust [34] concerning the difference in values over competence.
To enjoy true autonomy requires competence. The problem being that it is the medical profession who ultimately decides competence. Those detained under the Mental Health Act can be lawfully treated, but these people represent the minority of mentally ill or disabled patients.
Courts again have relinquished control of treatment of the incapacitated (and in essence their autonomy) to the medical profession, save extreme procedures. On the other hand, if such a patient cannot demonstrate capacity they could not make a truly autonomous decision from the start. Allowing the medical profession control in these cases has prevented HCW’s becoming criminals for treating such patients without consent.
The major drawback of this approach has been interpretation of the law. As we have seen, the courts have been more likely to profess autonomy in less ‘erratic’ cases such as Re C, when the outcome may not seem sensible but free will demands it to be carried out. In the distressing cases however, such as when woman and child’s life has been at stake, the courts’ ability to stand up to HCW’s seems to diminish. In Re MB and the other caesarean cases it was the ethical values and institutional integrity, as outlined in R. v. Collins and Ashworth Hospital Authority ex p. Brady (2000), which were allowed to overrule the right of the patient. The excuse of in-capacitance has allowed the courts to make the easier decision; which is to leave the decision in the hands of the doctors.
The competent and rational (or is it prudent and reasonable) patient seems to have got the better deal. The doctor has now to ensure their patient fully understands the risks of a potential procedure. In these cases however, the courts could also be accused of transferring the balance of power back to the doctors. It is they after all who will decide the level of competence the patient is at, and in turn the amount of information to give out. Even if the information given is proven to be inadequate, the HCW can still only be held liable in negligence.
The somewhat special relationship between the courts and the doctors allows such doctors liberties, and some immunity from the law, in exchange for taking the problematic cases (and their consequences) from the hands of the judges. Allowing the doctors a somewhat free reign seems therefore to be in the courts’ rather than the patients’ best interests.
Bibliography
Books:
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Brazier, M. Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003)
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Mason, J. K., McCall Smith, A., & Laurie, G. T., Law and Medical Ethics [6th Edition] (Butterworth’s, 2002)
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Kennedy I. & Grubb A., Medical Law [3rd Edition] (Butterworths, 2000)
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Freeman, M., Lewis, Andrew D. E., Law and Medicine [Volume 3] (Oxford University Press, 2000)
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Davies, Michael, Textbook on Medical Law [2nd Edition] (Blackstone Press LTD, 1998) p. 167
Web Sites:
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The True Role of Consent in Medical Treatment: Bastion of Patient Autonomy; Governor of Professional Competence; or an Exclusive Defence for Doctors? (last visited 20/11/03).
Cases:
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Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112.
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Williamson v. East London & City Health Authority (1997).
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F v. West Berkshire HA (1989).
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Chatterton v. Gerson (1981)
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Appleton v. Garrett (1996)
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Potts v. NWRHA (1983)
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Bolam v. Friern HMC (1957)
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Gold v. Haringey HA (1997)
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Smith v. Tunbridge Wells HA (1994).
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Bolitho v. City & Hackney Health Authority (1998)
- Chester v. Afshar (2002)
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Re T., (Adult: Refusal of Medical Treatment (1992)
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Re C., (Adult; Refusal of Treatment 1994)
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Re MB, (Caesarean Section) (1997)
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B. v. An NHS Hospital Trust T v. T (1988)
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F. v. West Berkshire HA (1989)
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Re S., (Adult Patient: Sterilisation) (2000)
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R. v. Collins and Ashworth Hospital Authority ex p. Brady (2000)
Brazier, M., Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003) p.92-93.
Mason, J. K., McCall Smith, A., & Laurie, G. T., Law and Medical Ethics [6th Edition] (Butterworth’s, 2002) p. 348
Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112.
Davies, Michael, Textbook on Medical Law [2nd Edition] (Blackstone Press LTD, 1998) p. 143
Brazier, M. Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003) p. 98
Williamson v. East London & City Health Authority (1997). In Mason, J. K., McCall Smith, A., & Laurie, G. T., Law and Medical Ethics [6th Edition] (Butterworth’s, 2002) p. 313
F v. West Berkshire HA (1989). In Brazier, M., Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003) p. 112
Mason, J. K., McCall Smith, A., & Laurie, G. T., Law and Medical Ethics [6th Edition] (Butterworth’s, 2002) p. 350
Chatterton v. Gerson (1981)
ibid. in Kennedy I. & Grubb A., Medical Law [3rd Edition] (Butterworths, 2000) p. 651
Appleton v. Garrett (1996)
Brazier, M. Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003) p. 100
Bolam v. Friern HMC (1957)
Siddaway v. Board of Governors of the Benthlem Royal and the Maudsley Hospital (1984)
Davies, Michael, Textbook on Medical Law [2nd Edition] (Blackstone Press LTD, 1998) p. 167
Brazier, M. Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003) p. 109
Mason, J. K., McCall Smith, A., & Laurie, G. T., Law and Medical Ethics [6th Edition] (Butterworth’s, 2002) p. 361
Smith v. Tunbridge Wells HA (1994). In Brazier, M. Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003) p. 107
Bolitho v. City & Hackney Health Authority (1998)
Freeman, M., Lewis, Andrew D. E., Law and Medicine [Volume 3] (Oxford University Press, 2000) p. 60
The True Role of Consent in Medical Treatment: Bastion of Patient Autonomy; Governor of Professional Competence; or an Exclusive Defence for Doctors? (last visited 20/11/03).
Re T., (Adult: Refusal of Medical Treatment (1992)
The True Role of Consent in Medical Treatment: Bastion of Patient Autonomy; Governor of Professional Competence; or an Exclusive Defence for Doctors? (last visited 20/11/03).
Re C., (Adult; Refusal of Treatment 1994)
Mason, J. K., McCall Smith, A., & Laurie, G. T., Law and Medical Ethics [6th Edition] (Butterworth’s, 2002) p. 332
Kennedy I. & Grubb A., Medical Law [3rd Edition] (Butterworths, 2000) p. 757
Kennedy I. & Grubb A., Medical Law [3rd Edition] (Butterworths, 2000) p. 624
Kennedy I. & Grubb A., Medical Law [3rd Edition] (Butterworths, 2000) p. 625
Brazier, M. Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003) p. 123-124
Mason, J. K., McCall Smith, A., & Laurie, G. T., Law and Medical Ethics [6th Edition] (Butterworth’s, 2002) p. 335
B. v. An NHS Hospital Trust in Brazier, M. Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003) p. 124
F. v. West Berkshire HA (1989)
Re S., (Adult Patient: Sterilisation) (2000)
Brazier, M. Medicine, Patients and the Law [3rd Edition] (Penguin Books, September 2003) p. 116-120
Mental Health Act 1983; Section 57, Section 58
R. v. Collins and Ashworth Hospital Authority ex p. Brady (2000) in Mason, J. K., McCall Smith, A., & Laurie, G. T., Law and Medical Ethics [6th Edition] (Butterworth’s, 2002) p. 635