Consent
• Purpose of consent to treatment
– moral purpose
– clinical purpose
– legal purpose
“It is trite law that in general a doctor is not entitled to treat a
patient without the consent of someone who is authorised to
give that consent. If he does so, he will be liable in damages
for trespass to the person and may be gulity of a crininal
assault.” Lord Donaldson
Re R (A Minor) (Wardship: Medical Treatment) (1991)
Consent: law
• Valid consent
– capacity to decide
– sufficient information
– acts voluntarily
Consent: law
• Capacity
– understand information provided
– retain and believe it
– weigh it in the balance to make a choice
• F v West Berkshire Health Authority (1989)
• Re C (Adult: Refusal of Treatment) (1994)
– proposed detailed 3 stage test for capacity
Consent: law
• Sufficient information
– Tort of battery
• patient informed in broad terms
• nature and purpose of treatment explained – consent
‘real’ and no liability in battery:
Chatterton v Gerson (1981)
– Tort of negligence
• higher standard operates for tort of negligence
Sidaway v Board of Governors of the Royal Bethlem
and Maudsley Hospital (1985)
• ‘material’ or ‘significant risks’ must be disclosed sufficiency of information defined by Bolam principle;
patient’s questions answered truthfully - (subject to
therapeutic privilege)
Consent: guidelines
• General Medical Council (GMC) guidance
– doctors should do their best to find out about
patients’ individual needs and priorities when
providing information about treatment options
– if the patient asks specific questions about the
procedure and associated risks these should be
answered truthfully
– an individual’s personal preferences should also
be taken into account when identifying his or her
needs in the provision of care.
Consent: law
• Voluntary
– no pressure or undue influence either to
accept or refuse treatment or care
– sources of pressure
• partners; family members; health or social care
professionals.
• Re T (Adult: Refusal of Treatment) (1992)
Consent: Best Interests
• no one can consent to treatment on
behalf of an incompetent adult
• doctrine of necessity can be invoked for
emergency treatment
• treatment can be given on basis of best
interests
Consent: Involvement of the Court
• Circumstances when when referral to court
necessary for a ruling on lawfulness before a
procedure is undertaken:
– sterilisation for contraceptive purposes
– donation of regenerative tissue such as bone
marrow
– withdrawal of nutrition and hydration from an
individual in a persistent vegetative state
– where there is doubt as to the individual’s
capacity or best interests.
Consent: Children
• Children
– Minors
• Consent – who can consent?
– child
– parent or guardian
– Court
– doctor
Consent: Children
• Child’s right to consent
– S8 family Law Reform Act 1969:
• 16-17 years of age
– ‘Gillick Competent’
• no specific age – depends on individual child
• “… child capable of understanding and who has the
intelligence to understand fully what is proposed”
Lord Scarman
• parent can act for a child who is not ‘Gillick Competent’
but cannot override a ‘Gillick Competent’ child’s consent
Children: Consent by Others
Consent treated differently to refusal
• parents, guardian or court able to over-rule refusal by a ‘Gillick
competent’ adolescent to receive treatment which is in her best
interests
– Re R (A minor) (1992); Re W (A Minor) (Medical Treatment:
Court’s Jurisdiction) (1992)
• ‘Gillick competence’ depends on seriousness of the decision
taken as well as cognitive powers and maturity
– Re L(Medical Treatment: Gillick Competence) (1998)
• Courts adopt paternalistic approach when adolescents are
afflicted with life-threatening situations
– Re M (Medical Treatment: Consent) (1999) 2 FLR 1027; Re E (A
Minor) (Wardship: Medical Treatment) (1993)
Children: Consent by Others
• Rationale for distinguishing between consent and refusal
– consent – accepting greater knowledge of medical
profession
– refusal – decision asks more of the child
– Courts reluctant to empower children to refuse treatment
against medical opinion; best interest test applied
Heirachy for decisions:
Court
↓
Parent
↓
Child