Consent to Treatment

Consent Required

Consent is required for medical treatment when it involves any physical interference with the body. This includes any touching or examination by a medical practitioner and, in the case of a surgeon, undertaking surgery.

For consent to be valid, it must be informed. This means that, particularly in the context of medical procedures and operations, the patient must understand the nature of the procedure and consent to it.

Undertaking physical treatment or surgery without consent is a battery, commonly referred to as civil assault. Competently performed medical procedures or surgeries might still be considered battery if they lack consent.

Claim Issues

A claim based on battery is one of the few types of claims for which there is a right to trial by jury because it is in the same category as assault.

Most claims against health professionals are based on negligence. Generally, there may be liability if a health professional undertakes a procedure or treatment and falls short of the standards of reasonable care required at common law. The physical damage and consequential loss, including economic loss, that follow from the physical damage are recoverable at common law.

The statute of limitations for negligence causing personal injury is two years. The statute of limitations for a claim based on battery is six years as an ordinary civil claim.

Consent Issues

Consent to treatment by a health practitioner must be given voluntarily, freely, and must be informed. Any element of pressure or coercion may negate valid consent. There is a national consent policy that provides guidance to practitioners on issues of consent.

Information should be given with sufficient time to allow the patient to consider and evaluate it. If consent is requested unnecessarily late, it may be invalid.

Consent can be withdrawn at any time. The context and circumstances generally mean that once procedures have started, it is necessary to conclude them.

Blood Transfusion Religious Belief

In a famous case where a woman was critically ill and required a blood transfusion, she refused consent to treatment based on her beliefs as a Jehovah’s Witness. The court made an order permitting treatment, taking the view that her refusal of treatment was influenced by her husband and his religion as a Jehovah’s Witness. The case was controversial and was effectively based on an assumption of undue influence by her husband.

In another case in the UK involving refusal of a blood transfusion by a Jehovah’s Witness, the court upheld an emergency blood transfusion. The court commented that, in principle, a person whose will was not overborne by pressures from religious belief and community could, in principle, give independent consent to or refuse life-saving treatment. The court found that there was undue influence by the patient’s mother.

Right to Bodily Integrity

The first implied or unenumerated right recognized under the constitution in the case of Ryan  v. the Attorney General was the right to bodily integrity. The case related to the fluoridation of water, and the court recognized that there is a constitutional right to bodily integrity.

In the case of a ward of court and withholding of radical treatment, the Supreme Court recognized a constitutional right to refuse treatment. Medical treatment may not be given to an adult of full capacity without his or her consent. There are a few rare exceptions, such as in cases of contagious diseases or medical emergencies where the patient is unable to communicate.

Refusal of Treatment

If medical treatment is given without consent, it may be considered trespass against the person. The consent by an adult of full capacity is a matter of choice and is not necessarily based on medical considerations. Therefore, medical treatment may be refused for reasons other than medical ones or for reasons most citizens might not regard as rational. Aa person of full age and capacity may make the decision for their own reasons.

The right to refuse treatment has long been recognized at common law. An adult patient suffering from no mental incapacity has an absolute right to choose whether to consent to medical treatment. The right to choice is not limited to decisions that others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown, or even non-existent.

The courts have upheld cases where persons have made apparently irrational decisions against all medical advice.

The Assisted Decision-Making (Capacity) Act 2015, which commenced in 2022, deals with advance healthcare directives. See the section on advance healthcare directives.

The right to refuse treatment is a further aspect of consent. In principle, a person may refuse life-saving treatment based on their own independent decision, dignity, and autonomy. The medical practitioner cannot overrule a freely taken decision even if the consequences are harmful.

The issue arises in the context of vaccine administration. Generally, a person should not undertake a vaccine without freely consenting to it. The issue of refusal of treatment has risen dramatically in some cases involving Jehovah’s Witnesses refusing life-saving blood transfusions based on religious beliefs.

Pre-COVID legislation on infectious diseases recognized the possibility of detaining and isolating persons infected. This legislation was dramatically enhanced during COVID-19, but much of it has since lapsed.

Pregnancy

Another context for controversy arises with the refusal of treatment in pregnancy. Prior to 2018, the Constitution recognized the separate right to life of the unborn child. Cases have arisen where pregnant patients refused treatment which might endanger the unborn child.

In a 2016 case the court considered the right to life of the unborn child and equated it with the parents’ decisions regarding born children. It did not consider the circumstances to be so exceptional as to justify actions that would breach the pregnant woman’s constitutional rights.

Article 40.3.3 has now been deleted from the Constitution.

Informed Consent

To give informed consent, a patient must understand the procedure and treatment concerned. Informed consent raises issues of battery and clinical negligence. It may be negligent in certain circumstances not to advise of particular consequences or risks of particular procedures.

The tendency in modern times has been to give greater weight to the patient’s opinion than the doctor’s autonomy. In earlier cases, courts were deferential to doctors’ judgment.

In a famous case in the 1950s, a doctor had broken a needle during childbirth and proceeded to stitch up the mother without informing her. In a later action based on negligence, the judge commented that he could not admit an abstract duty to tell patients what is the matter with them or say that a needle had been left in their tissue.

Controversially, he indicated that the plaintiffs were of a class and standard of education that would incline them to exaggerate the seriousness of the occurrence or to suffer needless alarm. This standard and approach is very unlikely to be acceptable in the present day.

Therapeutic Privilege

Courts acknowledge the so-called therapeutic privilege, which arises when a doctor does not disclose facts because they apprehend that there would be a serious risk of serious psychological harm to the patient if they were told of the risk concerned. The modern approach is that therapeutic privilege might only apply in exceptional circumstances.

Materiality

The courts internationally and ultimately in the United Kingdom have adopted a more patient-centered approach. Matters are considered from the perspective of a reasonably prudent patient, focusing on the materiality of the risks concerned as to what should be disclosed and what should not.

The UK Supreme Court has indicated that the test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk or the doctor is or should be reasonably aware that the particular patient would likely attach significance to it.

The Supreme Court accepted that the failure to obtain adequate consent could in principle be negligence in itself. The court indicated that the greater the elective element of the surgery, the greater the duty to warn of risks. In contrast, in an emergency, there was a lesser duty at the other end of the scale.

One member of the Supreme Court indicated a tension in saying that where there is a question of elective surgery which is not essential to health or bodily well-being, if there is a risk, however exceptional or remote, of grave consequences including severe pain stretching for an appreciable time into the future and involving the possibility of further operative procedures, the exercise of the duty of care owed by the defendants requires that such possible consequences be explained in the clearest language to the plaintiff.

In a later case, a High Court reviewed the earlier Supreme Court decision and indicated as a general principle that the patient has the right to know and the practitioner has a duty to advise of all material risks associated with the proposed form of treatment. The court must ultimately decide what is material.

Materiality includes consideration of both the severity of consequences and the statistical frequency of the risk. That both are critical is obvious, but risks may have serious consequences and yet, historically and predictably, be so rare as not to be regarded as significant by many people.

Each case should be considered in light of its own particular facts, evidence, and circumstances to see if a reasonable patient in the plaintiff’s position would have required a warning of the particular risk.

Irish Approach Similar

The law in Ireland has developed in a similar way. In a case in the 1990s, a plaintiff underwent a vasectomy performed by the defendant and was warned of a 2% risk of swelling. The risk factor occurred, and he was left with severe pain due to a rare but known complication.

The current modern position in Ireland emphasizes a patient-centered approach. There is a spectrum of procedures and treatments ranging from wholly elective and unnecessary to emergency circumstances. The duty to warn must vary with the elective nature of the surgery concerned.

Where there is an emergency situation and procedures are required in respect of unconscious persons and persons incapable of giving consent, including children and other incapacitated persons, there may be instances where, as a matter of medical knowledge, notwithstanding substantial risks of harmful consequences, the carrying out of a particular procedure is so necessary to maintain the life or health of the patient, and the consequences are so clearly disadvantageous, that limited discussion or warning concerning possible harmful effects may be appropriate or proper.

On the other hand, the obligation to give warning of the possible harmful consequences of a procedure which could be said to be at the other end of the scale of elective would be more stringent and onerous.

The nature of the risk determines its materiality. If the risk is one of severe pain or chronic severe pain, then there is a very high onus to disclose and communicate the risks.

Causation

In negligence and battery cases, the onus remains on the plaintiff to claim that the breach of duty caused the damage concerned. As in many contexts in negligence, the person must show that had he or she had sufficient information, they would not have consented to the operation which caused the harm. T

he court needs to reconcile hindsight and must determine what the person would have done had they known of the risk on an objective basis. The person generally has an interest in claiming that they would not have consented in hindsight.

The court takes an objective approach with an element of subjectivity, considering whether the particular plaintiff would, on the balance of probabilities, have not consented. The court takes account of the nature and magnitude of the risk in context. In practice, it is difficult to meet this standard.

Form of Consent

The form of consent will depend on the circumstances. Consent may be written or verbal. It may be express or, in some cases, implied. It is preferable to have written consent. In practice, obtaining consent in writing is desirable.

Implied consent is limited but may arise as a matter of common sense in certain circumstances. Consent may arise in the normal course of things where a person submits to treatment and it is apparent what the treatment involves.

Another context is where there is an emergency and a person has limited or no capacity to discuss and give express consent. In cases where intervention or the procedure is necessary to save lives, there is a lesser degree and a lesser onus to obtain express consent. However, if there is no emergency and the procedure could be undertaken later, implied consent is less likely to be sufficient.