CONSENT o Not informed of alternative treatments
BIRCH
o + Giving info may be harmful
X v A mother
- 1-2% risk of stroke = disclosed, but ≠ told about MRI scan w/ no risk of stroke - Not in children’s best interests to be tested for Huntington’s Disease, but no cure ∴ info
• Consent must be: - Causation: If warned, she wouldn’t have undertook angiogram = negligent harms > benefits
o Voluntary
o By someone w/ capacity • + APPLEBAUM: Doctors spend ↑ time finding out matters relevant to patient = ↑ patient care • - KIHLBOM: Patients may argue “if informed, wouldn’t have consented”
o Informed ‘in broad terms’ about treatment o ∴ ↑ Patient-focused, b/c asks what patient wants to know > what colleagues would do • - MANSON: Open communication = shows respect
§ 1) Respects patient autonomy, b/c right to decide what’s done to her body
§ 2) Patient chooses best treatments suited to her ∴ better outcomes • - 1) Doctors ≠ know what patient expects ∴ asks colleagues
§ 3) Info ↓ doctor-patient power imbalance
1) BATTERY = rare
• - 2) “Reasonable patient” may not reflect patient’s actual preference ≠ respect right to autonomy
PARTICULAR PATIENT TEST
CAPACITY *< 16 = competence / 16-17 = capacity
• Battery: Treating w/o consent • What a particular patient needs to make a decision? Consider factors relevant to patient; no set % of risk
CONSENT *Requires consent for each proposed intervention, e.g. pain relief, initial checks, transport to hospital
o No consent MONTGOMERY
• May infer by conduct, e.g. puts arm out for blood test
CHATTERTON - Diabetic mother worried about size of baby
- 9-10% shoulder dystocia = baby born severely disabled • Free to withdraw consent at anytime
- D disclosed treatment method, but ≠ warn of possible numbness
- Court: If informed in broad terms of nature of treatment + consented = “real consent” ≠ battery - Doctor evidence: If every woman given this info = all (incl. M) opt for caesarean section PRINCIPLE OF AUTONOMY
- Court: Whether reasonable person, in patient’s position, likely to attach significance to the risk / • Art 8: Right to make key decisions on private life, incl. treatment
o Diff procedure was performed
doctor should be reasonably aware that particular patient would be likely to attach significance to it? Bland
§ Requires deliberately inflicted injury
- “Significance”: Nature of risk, effect on patient, importance to patient of treatment benefits, - If capacity = priority given to autonomy, even if against best interests
APPLETON
available alternatives + its risks § - Individualistic ≠ consider impact on others (dependent kids)
- Dentist carried out unnecessary treatment for financial gain
- Court: Withheld info in bad faith + knew patients wouldn’t consent if properly informed = battery § - GLICK: May regret ∴ respecting SR AUTONOMY to die = deprived of autonomy to make future decisions
• + 1) CAPRON: Subjective standard ↑ autonomy = tailors info according to patient’s priorities + concerns
o Consent vitiated by fraud • + 2) MACLEAN: Engaging w/ each other facilitates patient’s ability to further own goals/values PREGNANT WOMAN’S REFUSAL SB / S / St George / MB ; SR
TABASSUM • + 3) FADEN: Focuses on patients asking Qs > doctor deciding what info to disclose • If capacity, may refuse treatment
- Women consented to a sham breast examination SB *Abortion topic
- Court: Not true consent b/c mistakenly believe T = medically qualified • - In practice, patients ≠ explain all relevant info in brief consultation ∴ doctors can’t predict what factors
VS. are significant to them Re S
Richardson - Pregnancy ≠ ↓ competent patient’s right to refuse treatment
OTHER APPROACHES
- Suspended dentist continued treating patients
• 1) Full information: Disclose every risk = ↑ patient autonomy, b/c decides which risks willing to take o Irrational decision ≠ mean incompetent
- Court: Cannot vitiate consent b/c victim ≠ mistaken as to the dentist’s identity
• 2) Disclose major risks + give leaflet w/ all risk ∴ up to patient to find out more St George’s NHS v S
• Requires physical contact, but not physical harm *Not informed of side effects ≠ claim battery - Unlawful to perform caesarean against her wishes, despite her + baby die w/o it
CAUSATION - Even if decision = “morally repugnant”
• Doctor exercising reasonable care + skill ≠ defence
• “But for” test:
2) NEGLIGENCE *Sue hospital vicariously? o 1) Injury made her worse off than if procedure hadn’t been performed • If lacks capacity, treatment in her best interests
o 2) Injury materialised b/c negligently undisclosed risk MB à TEMPORARILY INCOMPETENT
• Patient inadequately informed before treatment + suffers injury b/c doctor’s failure to disclose
o 3) If informed of risk, wouldn’t have consented to treatment ∴ breach caused harm - Needle phobia = refused caesarean to save her + baby’s life
o Duty of care: Provide patients w/ info
PEARCE - Court: Needle phobia rendered her temporarily incompetent ∴in best interests to give birth
o Breached duty of care
o Harm caused by breach - Even if disclosed risk, would still follow doctor’s advice § Temporary factors that erode capacity: e.g. shock, pain, drugs
§ HERRING: Impulsiveness ≠ our true values
STANDARD OF CARE BIRCH
- B explicitly said if comparative risks explained to her, would’ve chosen MRI INCAPACITY
REASONABLE DOCTOR TEST
- Accepted b/c B = intelligent + sensible individual able to make that decision • < 16: Presumed to lack capacity, unless Gillick competent
• What a reasonable doctor would disclose? = judged against responsible body of medical opinion
BOLAM § CAPRON: If patient ≠ intelligent + sensible = undermines patient’s right to make foolish
• 16-17: Presumed to have capacity to consent [s8 Family Law Reform Act 1969)
- Small risk of fracture in electroconvulsive therapy ≠ disclosed ∴ fractured hip decisions + opt for riskier treatments
• 18+: Presumed to have capacity
- Medical opinion varied on whether to warn patients of such risk ≠ negligent • 16+: If lacks capacity = MCA
CHESTER
∴ Acted accordingly to accepted practice of responsible body of medical opinion - She would’ve had operation, but at diff time = causation
CHILDREN < 16
- Court: Enough to show she wouldn’t have consented at the time
• + 1) Easy to apply w/ expert witnesses • Effective consent by:
- Lord HOFFMAN dissented: ‘But for’ test failed, b/c operation timing ≠ affect risk of injury
o VS. If doctor ≠ know patient = hard to guess what patient would want to know o Gillick-competent
§ FOSTER: Easy to prove causation - ‘if properly warned, would have decided at later date”
§ JACKSON: Doctors give excessive info to avoid liability = ↓ ability to make informed choice, b/c o Parental responsibility
attach ↑ importance to remote risks + refuses potentially successful treatments • JACKSON: *Patient has right to info, but can’t take advantage of it
o Court order
• + 2) Law respects diversity of views on ways to deal w/ patients o - 1) If successful operation = hard to prove loss for information disclosure • If child refuses, parent can consent
• + 3) Doctors = best placed to know what risks patients worry about o - 2) Doctor created situation in which the risk materialised > cause injury • If child + parent refuses, court order
o Highlighting a few key risks = ↑ valuable to patients > information overload • - 3) MILLER: Doctors play God by not disclosing treatments, b/c some patients can pay privately for care 1) PARENTAL RESPONSIBILITY
• - 1) Paternalistic: Doctor determines which treatments are proposed ∴ patient can only accept/reject THERAPEUTIC PRIVILEGE • Presumed to lack capacity ∴ those w/ parental responsibility may consent to child’s treatment
o O’NEILL: Choosing from simplified menu ≠ autonomy • If disclosing info seriously deteriorates patient’s health = may withhold info • Requires consent of 1 parent
• - 2) ↓ Patient’s right to autonomy o Burden on doctor to justify non-disclosure SR
o LESSER: Tolerability of side effects = best judged from patient’s POV ≠ require clinical expertise • - HEYWOOD: Mostly unused, b/c few circumstances justify full non-disclosure - Mother refused, father consented ∴ sufficient to provide treatment
• - 3) No guidance on what to disclose, b/c determined retrospectively by courts • - Paternalistic: Applies if patient has no rights/capacity Right to participate
• - 4) Ignores role of other healthcare professionals, e.g. nurses = ↑ time to discuss treatment options w/ patients
PRESENTING INFORMATION • GMC Guidance: Even if ≠ Gillick-competent, doctors should incl. children in decisions
PRUDENT PATIENT TEST • Reasonable steps to ensure patient understands info e.g. translation, JR doctors ≠ experienced to communicate w/ patients 2) GILLICK-COMPETENT CHILD
• What a prudent patient, in patient’s position, would want to know? Lybert • Child w/ sufficient maturity + understanding to make competent decision = valid consent
SIDAWAY - Disclosed risks of failing to achieve sterility after operation = negligent GILLICK
- 1-2% spinal damage ≠ disclosed - Argued Department of Health guidance ≠ lawful, b/c doctor shouldn’t give contraceptive advice/
- No reasonable body of medical opinion would disclose this risk ≠ negligent • MIOLA: Law focuses on risk disclosure > understanding the info ≠ maximise our autonomy
treatment to < 16 w/o parent’s consent
- Lord SCARMAN: Prudent patient test - Court: If < 16 w/ sufficient maturity to understand what’s involved = capacity
DUTY TO ANSWER Qs
- Lord DIPLOCK: Bolam test § Doctors may continue w/o parent’s consent if –
Sidaway
- Lord BRIDGE: Modified Bolam test 1) Understands advice
- Duty on doctors to answer Qs
- Bolam test, unless courts decide ought to disclose substantial risk of grave adverse 2) Cannot persuade her to inform parents / allow doctor to inform parents that she’s seeking
consequences (10%) • Unfair: Patients ask Qs (given full info) vs. patients that don’t ask (standardised info) contraceptive advice
- Lord TEMPLEMAN: Modified Bolam test o BRAZIER: Favours educated patients at expense of shy patients 3) Child will continue to have sex
- If special risk to patient, Bolam ≠ decisive o Some patients are better at asking Qs than others 4) If doesn’t receive contraceptive advice/treatment, physical/mental health = affected
Poyntor 5) In her best interests to receive contraceptive advice/treatment w/o parent’s consent
PEARCE
- Parents ≠ ask precise enough Qs on place doctor under duty to disclose 1% risk of § Lord SCARMAN: If Gillick-competent = replaces parents’ right to consent
- Natural birth w/ 0.1% risk of stillbirth ≠ disclosed
permanent brain damage § HERRING: Child’s privacy rights = right to decide whether to tell parents
- Court: If significant risk affects judgment of reasonable patient, should inform
- Reasonable patient wouldn’t expect risk to be disclosed b/c low probability RIGHT NOT TO KNOW AXON
• HERRING: Should have a recognised right not to know - Argued Department of Health guidance ≠ lawful, b/c permits doctor to perform abortion on
CHESTER
o + Forcing unwanted info on patient = breaches right to privacy daughters w/o parent’s knowledge = Art 8 breach
- Back pain, 1-2% nerve damage ≠ disclosed
o + Ignorance may help individual make a decision = ↑ autonomy > frustrates - Court: Gillick applies to abortions
- Medical opinion would disclose small, but well-established risk of serious injury
§ - If don’t know what info is, how can you decide you don’t want it? ∴ can’t exercise autonomy - Otherwise, lack of confidentiality deters young people seeking advice + treatment ≠ desirable
