Consent to treatment and the tort of trespass to the person

Dawn Gawthorpe 2010

Achieving the NHS Plan commitment to patient - centered consent practice

The NHS Plan outlined the need for changes in light of Bristol Royal Infirmary ReportReference guide to consent for examination to treatment DoH(2001) published and as a result new model consent forms and policy formulated with timescale for implementation (complete by Oct2002)Chief Medical Officer recommended standardised consent forms for post nortems and retention of tissues and organsWritten information has to be available to patients,to back up what they have been told face to face

Trespass to the person

There are three forms of trespass: assault, battery and false imprisonment

Defences to an action for trespass to the person:

Consent

Necessity

Making a lawful arrest

Action under a statutory power,e.g Mental Health Act

Parental powers

Forms of consentInformed consent can be written,oral or given by implication ( Department of Health 2001)Informed consent defined by Beauchamp and Childress 1994 as comprising two elements 1Information elements- disclosure and comprehension of information 2Consent elements- voluntary and competent to consentConsent is expressively given by patients when they sign what has become known as a consent formBolam v Frien Hospital Management Committee[1957]Implied consent may not only be expressively given but may be implied from the patients conduct Sidaway v Bethlam Hospital Royal Hospital Governors[1985]1ALL ER 643Necessity - used in emergency situations where the patient can neither consent or refuse

What is needed for a valid consent?

Made by a person with capacity

Voluntary and not made under any influences

Real based on adequate information

Consent to treatment - Adults

Within English law it has been established for many years

that a patients bodily integrity is inviolble Justice Cardoaza in Schloendorff v Society of New York Hospital (1914) 105 NE92

English law requires that any adult who is mentally and physically competent must consent to any treatment being performed for it to be lawful.

‘In the absence of consent all,or almost all, medical treatment and all surgical treatment of an adult is unlawful however beneficial such treatment might be.This is incontestable.’ F v West Berkshire Health Authority [1989]2ALL 545

Capacity to consent

Derived from the latin competens which means ‘coming together at one point’ being ‘fit for purpose’ Welie and Welie 2001

All persons are deemed to have capacity in English law unless it is shown they do not – the burden of proof is on that person

ReC (adult refusal of treatment)[1994]1ALL ER 819 Thorpe J stated ‘that there are three stages to the decision making process:1) to take in and retain the information 2) to believe it and 3) to weigh that information balancing risks and needs

Capacity 2

MB[1997]8 med LR 217 set out three principles:

1. In general it was a criminal and tortuous assault to perform physically invasive medical treatment,however minimal the invasion might be,without the patients consent

2. A mentally competent patient had an absolute right to refuse to consent to medical treatment for any reason,rational or irrational,or for no reason at all,even where the decision might lead to his or her own death.

3. Emergency medical treatment could be given,provided the treatment was a necessity and did no more than was reasonably required in the best interests of the patient

Refusal to treatment

Re T(Adult: Refusal of Treatment)[1992]4ALL ER 649,

Lord Donaldson,M R stated ‘As I pointed out at the beginning of this judgement,the patients right of choice exists whether the reasons for making the choice are rational or irrational,unknown or even non existent.That his choice is contrary to what is to be expected of the vast majority of adults is only relevant if there are other reasons for doubting his capacity to decide.The nature of his course or the terms in which it is expressed may then tip the balance….’

Withdrawal of consent

Patient’s can withdraw their consent at any time even after it has been given .To continue treatment would be battery.

In a canadian case Ciarlariello v Schater (1993) 100DLR(4th)(SCC)

‘If it is found that the consent is effectively withdrawn during the course of the procedure then it must be terminated..The question whether a patient is capable of withdrawing consent will depend on the circumstances of each case…The words used by the patient might be ambiguaous. Even if they are apparently clear,the circumstances under which they were spoken may render them ambiguous’

The patient’s best interest

Part 1 sec 4 MCA[2005]

Acertain where possible the persons past and present wishes and feelings, the beliefs and values that would be likely to influence his decision if he had capacity, and the other factors that he would be likely to consider if he were able to do so.

Consult with anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, anyone engaged in caring for the person or interested in his welfare, any donee of a lasting power of attorney granted by the person, and any deputy appointed for the person by the court,

Statutes

Whilst there is no actual statutes in regard to consent the new Human Rights Act(1998) has implications for medical law:

Article2 protection of life

Article 3 prohibition of torture,inhuman or degrading treatment or punishment

Article5 right to liberty and security

Article 8 right to respect for private and family life

Article 9 freedom of thought conscience and religion

Article 12 Right to marry and found a family.

The removal of organs and tissues from patients who have been declared dead is governed by the Human Tissue Act 1961

Professional bodies

You must ensure that you gain consent before you begin any treatment or care

You must respect and support people's rights to accept or decline treatment and care

You must uphold people's rights to be fully involved in decisions about their care 

You must be aware of the legislation regarding mental capacity, ensuring that people who lack capacity remain at the centre of decision making and are fully safeguarded (NMC 2008)

You must be able to demonstrate that you have acted in someone's best interests if you have provided care in an emergency That nurses should respect the autonomy of patients even if it could result in harm,unless there is a court order to the contrary.

Doctors could be disciplined and even struck off if they give treatment to a critically ill patient without his or her consent (GMC2002)

You must get informed consent to give treatment (except inan emergency).HPC (2008)

Children Kennedy and Grubb 1989

Child of tender years

The Gillick competent child

Children of 16 and 17 years

Parental Responsibility

Natural married parents

Unmarried natural parents

Step parents

Carers

ReJ[2000] and ReB (A child) [2003]

Re Wyatt (A child) ( Medical Treatment: Continuation of Order) [2005]

Gillick Competence

Does a child under 16 have the competence to make consent?

Gillick v West Norfolk and Wisbech AHA[1986]

Re L ( Medical Treatment: Gillick Competence [1998]

Fraser Guidelines

Children 16 and 17 years old

Have a right to consent to medical examination under Family Reform Act 1969 sec 8Surgical, medical and dentalIncludes any procedure for the purposes of diagnosis including administration of anaesthetic which is related to that treatment.Re W (A minor)( Medical Treatment Court’s jursidiction)[1992]

Children and refusal

Capacity determined by MCA [2005]

Can override a refusal only if you have parental responsibility

Use of secure accomodation to restrict liberty of child sec 25 Children’s Act 1989