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Inferior consent

MagazineMarch 1994 (Vol. 4 Issue 12)Inferior consent

At first sight, it may seem obvious that before being expected to agree to what amounts to an invasion of one's body in other fields, a criminal offence that patients should be given the fullest possible information available to allow them to reach a

At first sight, it may seem obvious that before being expected to agree to what amounts to an invasion of one's body in other fields, a criminal offence that patients should be given the fullest possible information available to allow them to reach a

This seems to be the view championed by the UK government. In its much touted Patient's Charter (1992), it proclaims that every patient of the National Health Service has the right "to be given a clear explanation of any treatment proposed, including any risks and alternatives, before [deciding whether to] agree to the treatment."

This view has also been endorsed by health service managers. After the introduction of the patients' charter, they were reminded in the UK medical press that patients "are entitled to receive sufficient information in a way they can understand about the proposed treatment, the possible alternatives and any substantial risks, so that they can make a balanced judgement" (Malcolm Dean, The Lancet, 3 April 1993).

However, the English courts are well known for their reluctance to find doctors legally responsible for their actions when things go wrong. It comes as no surprise, therefore, to find that English law is out of step with the government's declared intentions and the decisions reached by the courts in other countries.

Under English law, patients are only entitled to be told in broad terms the nature and effect of the proposed medical procedure. In other words, the doctor only needs to tell his patient as much or as little about potential risks as a reasonably competent doctor would be expected to tell his patients. This follows a 1985 case (Sidaway v Bethlam Royal Hospital) which confirmed an earlier court decision, dating back to 1957 (Bolam v Friern Hospital).

Thus if a patient wants to get the full picture from his doctor, he needs to be very well informed and very persistent in his questioning. If he asks a specific question is there a risk of so and so occurring in this operation, doctor?" the doctor's duty is to give an honest answer. But the doctor is not obliged to volunteer the information otherwise. The upshot is that the medical profession is the ultimate arbiter of what information should or should not be given.

In this regard, British law lags behind the courts of other countries, as a recent Australian case (Rogers v Whittaker) clearly demonstrates. A 47 year old patient, who had been blind in her right eye since a childhood accident, consulted an ophthalmic surgeon. He believed that he could improve the vision of the right eye and its cosmetic appearance. The patient asked many questions; nevertheless, the surgeon did not tell her that the operation carried a one in 14,000 risk of causing sympathetic ophthalmia in the other eye. Unfortunately it did develop and she is now almost totally blind.

In court the surgeon's defence was that he had acted in accordance with the so called Bolam principle (after the 1957 case). This principle holds that the doctor did not need to mention the risk so long as he was acting "in accordance with a practice accepted as proper by a responsible body of medical opinion, even though other doctors adopt a different practice".

However, the Australian High Court rejected this argument and drew a distinction between what a patient needs to be told at diagnosis, and what he needs to be told before agreeing to treatment.

Although UK doctors can legitimately withhold information from patients about the potential consequences of treatment, adults in this country do have an absolute right to choose whether to consent to or refuse a particular course of action, or seek alternatives. This right has been upheld by the courts even when there is mental impairment.

A chronic schizophrenic (Re C) was diagnosed as having gangrene in one foot and his doctors maintained that unless it was amputated he would die. The patient refused treatment and obtained a court order banning the hospital from carrying out the operation against his wishes. In deciding in favour of the patient, the court determined that, although C's mental capacity was impaired, it hadn't been established that he didn't understand the purpose and effect of the treatment proposed.

Where a patient isn't capable of making a decision on his own behalf either because he's too young or too mentally impaired the courts can step in to make the decision on the patient's behalf and, if necessary, to adjudicate on whether or not any consent was validly given.

It is interesting to note that those patients who need the intervention of the court are entitled to greater access to information than the rest of us. The court will insist on the fullest possible disclosure of information before attempting to decide what treatment to agree or refuse. For example, when it is being proposed to sterilize a mentally incapable patient, the Official Solicitor appointed by the government to represent the interests of such patients is allowed to carry out his own investigations, call his own witnesses, and take whatever steps he thinks necessary to ensure that everything relevant is put before the judge to enable him to reach a proper decision.

Unfortunately, a competent UK patient is expected to decide what to do about his own treatment without the benefit of such detailed and comprehensive information.

!APaul Balen


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