How does the tort of negligence protect a patient’s autonomy in respect of their consent to medical treatment?

Introduction

The right of a patient to make an autonomous decision regarding their right to consent to medical treatment is a fundamental ethical and legal issue that has been discussed in academic, legal, and ethical literature from a number of perspectives. The legal notion of autonomy within medical law is discussed, with reference to the development of English law through statute and case law.

Autonomy and Consent in Medical Treatment

Patient autonomy is now recognised as a key principle of medical practice and law. Autonomy means that the patient is entitled to refuse treatment, even in situations in which a doctor might consider that a certain course of treatment, or even treatment itself, is in the patient’s best interests. Where a patient has explicitly refused their consent to treatment or a course of treatment, its provision would be a serious violation of their autonomy. The way in which the English law on medical consent and autonomy has developed through various case judgements may be asserted to have essentially translated morals into a formalised legal reality.

Negligence, Autonomy and Consent in Medical Law

The standards established in Bolam v Friern Hospital Management Committee govern the stance which English law takes on negligence committed in the medical context.[1] In this case, a patient suffering from mental health problems and who had admitted himself to a psychiatric hospital, was treated with electro-convulsive therap. However, the treating doctors had failed to provide the patient with the vital muscle relaxants which were used for restraint, and as a consequence he sustained injuries.[2] At the time the case was decided, medical thought on electro-convulsive treatment for mental disorders was still in development, and there was a variety of opinion expressed. Nevertheless, the court held in the favour of the defendant. Despite the fact that on the specific issue of electro-convulsive therapy, medical opinion has significantly advanced, the case remains good law for the principle it established, this being that, as the judge remarked, the test “is the standard of the ordinary skilled man exercising and professing to have that special skill.”[3] This standard of the ordinary skilled man continues to be used today, meaning that as medical opinion is often varied, a doctor who can prove that they acted as a responsible professional will be more likely to be able to disprove any accusation of negligence.

The next significant case with regard to the link between medical negligence and patient consent was Sidaway v Board of Governors of the Bethlem Royal.[4] This case determined the way in which medical negligence is defined. The case concerned an action brought by a patient who asserted that doctors had failed to advise her of the risk of paralysis before she consented to an operation. The judgement was decided by following the test established in Bolam, this being that medical professionals are not obliged to warn patients in great detail of all possible risks.[5] Nonetheless, Sidaway v Board of Governors was an extremely important case due to the principle that it established in the common law, which is that doctors are required to provide their patients with enough information to enable them to make an informed decision on their treatment. It is this provision of information that enforces patient autonomy. This is essentially the principle of informed consent in English medical law.

It was however the 2004 case of Chester v Afshar which significantly changed the law on medical negligence, consent and the provision of information to a patient, with specific regard to the warning of risk. [6] This case concerned a patient who did not receive sufficient information on the risks of a procedure, with the judgement holding that it was definitively this lack of information which meant that her decision to undergo treatment had not been fully autonomous.[7] Although Chester v Afshar did not actually overrule Sidaway, it effectively changed the law on the provision of information that doctors must provide to their patients. The stance taken on this issue in Sidaway was paternalistic, with patients being considered entitled to be informed of “only what doctors thought they should know.”[8] This is an undeniably paternalistic approach which is the antithesis of the concept of autonomy.

The decision in Chester v Afshar should be considered in relation to Chatterson v Gerson.[9] Here, the claimant agreed to surgery which worsened her condition and resulted in her being required to undergo a corrective operation, which failed. Although her claim for both negligence and battery failed, the case cemented the principle that a doctor may be liable for negligence where he failed to provide the patient with adequate information and fully explain the risks of a procedure. This is because it is this explanation and the provision of knowledge which enables the patient to grant or refuse their consent, and thus to exercise their autonomy. These cases were followed by others such as Smith v Tunbridge Wells Authority in 1994, which further developed the law. Here, doctors failed to explain to a young man that a medical procedure might render him impotent. [10] The significance of the case lay not only in the stress it placed on the need to provide patients with information and thus to gain their consent, but it also marked a new era of openness in the patient doctor relationship. In another major case, In Pearce v United Bristol Health Care NHS Trust in 1998, a woman’s case against her obstetrician for failing to warn her of the risk of a stillbirth failed. However, although her case was dismissed, it did establish that the basis on which patients should be warned of risks is objective, and that this should consider what a patient would want to know. [11] Indeed, the flux of cases that followed concerning consent and medical negligence directly resulted in the publication by the General Medical Council in 2008 of guidance for medical professionals on consent and negligence. [12]

Conclusion

It is inarguable, therefore, that in English medical law, the principle of patient autonomy in medicine is inextricably linked with consent. Numerous cases have established that doctors must provide sufficient information to their patients and warn them of risks. Both the concept of consent, as well as the notion of medical negligence itself, have developed over the course of the last few centuries to establish the legal framework that governs the way patients are treated and are able to assert their rights of autonomy, as well as to grant their consent.

Bibliography

Cases

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Chatterson v Gerson [1981] 1 ALL ER 257

Sidaway v Board of Governors of the Bethlem Royal and the Maudsley Hospital [1985] 1 All ER 643

Smith v Turnbridge Wells Authority [1994] 5 Med LR 334

Pearce v United Bristol Health Care NHS Trust [1998] 48 BMLR 118, CA

Chester v Afshar [2004] UKHL

References

Brazier, M. Medicine, Patients, and the Law (Penguin Books, 5th Ed. 20011)

General Medical Council Consent: Patients and Doctors Making Decisions Together (2008) < http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp

[1] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

[2] Ibid.

[3] Ibid. at 119

[4] Sidaway v Board of Governors of the Bethlem Royal and the Maudsley Hospital [1985] 1 All ER 643

[5] Ibid.

[6] Chester v Afshar [2004] UKHL

[7] Ibid.

[8] Brazier, M. Medicine, Patients, and the Law (Penguin Books, 5th Ed. 20011) 129

[9] Chatterson v Gerson [1981] 1 ALL ER 257

[10] Smith v Turnbridge Wells Authority [1994] 5 Med LR 334

[11] Pearce v United Bristol Health Care NHS Trust [1998] 48 BMLR 118, CA

[12] General Medical Council Consent: Patients and Doctors Making Decisions Together 2008 < http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp