Medical Cases & Consent

Medical Practitioners’ Liability

Claims may be taken against medical practitioners on the basis of a battery.  This may sound intuitively surprising.  A battery is a tort involving the direct application of force to the body.  Consent is a defence. The courts have devolved the principle, so that consent must be informed.  The essence of a medical claim based on battery or trespass is that the patient did not give informed consent.

The principle of bodily integrity has been recognised as a Constitutional right.  It was the first implied personal right recognised as and unenumerated Constitutional personal rights. This has given support in Ireland for the requirement for informed consent, which was already recognised in the United Kingdom.

Where a doctor does not give proper warning of the risks associated with a particular surgical procedure or treatment and harm results, in consequence, there may be a liability in negligence.  A claim for battery or (sometimes in this context termed assault) may also arise where there is no consent to the particular procedure. Consent obtained by deception or fraud is also ineffective.

There is an obligation on the medical practitioner/surgeon who carries out an operation, to inform the patient of any harmful consequences. This is so that the patient may have the opportunity to give informed consent, before subjecting himself to the operation. The extent of the obligation varies with the elective nature of the surgery.

The principal Irish authority on consent arose in the context of a vasectomy.  After the operation, the claimant suffered a number of complications, which were inconsistent with what he had been told in advance. The Supreme Court found that there was no negligence and that sufficient warning had been given so that there was no battery/trespass to the person.

The Supreme Court confirmed that there was an obligation to warn the plaintiff of possible consequences which may arise, even if they are relatively rare.  This is particularly necessary where the procedure was elective, rather than essential to health. Where the particular surgical procedure is necessary to maintain the life and health of the patient and the consequence of failing to carry it out are so clearly disadvantageous, the duty may be less extensive in the circumstances.

Failure to Warn

If the failure to warn is a result of common practice,  it may avoid being characterised as negligent, if there is a reputable school of opinion holding that a warning is necessary. This is subject to the principle that the general and approved practice might be inherently and obviously defective so that a warning is nonetheless required.

Elective surgery which carries the possibility of serious consequences requires that those risks be disclosed.  The requirement extends to giving a warning about a material risk, which is a known complication of the procedure properly carried out.  The test of materiality considers the risk and the probability of its occurrence.  The remoteness of the risk is balanced against the gravity of the consequences.

The disclosure obligation applies to possible adverse consequences that should have been known to the medical practitioner.  If the adverse consequence is the lack of success of the procedure then the failure of consent cannot apply, since this is the very thing consented to.

 There may be limitations to the obligation to warn. Where the risk is remote, it is harder to characterise its non-disclosure as an inherent defect. The courts have held medical practitioners liable, even where evidence has shown that it was not practice to give warning of the risks. However, the risks must be material in terms of consequences and statistical frequency.

The fact that a warning was not given, when it should have been given on the above principles, is insufficient for a successful claim. The claimant must show that the failure to warn was the cause of the complication. In effect, he must prove that he would not have submitted to the procedure, had he known the relevant risks.

Battery and Consent I

There are different approaches in other jurisdictions to liability for battery in the absence of consent.  In some jurisdictions, the court focuses on what a reasonable patient in that position would have done.  More weight is given to the patient’s personal concerns, such as particular risks to his lifestyle or occupation.

The patient may be deemed to have given implied consent to examination in placing himself in a doctor’ care.  In many cases, the extent of consent in the context of examinations and diagnoses will be readily implied by the circumstances.

In broad terms, the current position places a relatively high onus on the medical practitioners to disclose risks.  This obligation will apply in many cases, even if it is not general practice internationally in the profession to disclose the risks.

The Irish court appears to give weight to the subjective approach and the circumstances of the patient.  In this context, a material risk is relative to the circumstances of the particular case. Would a reasonable person in the patient’s position be likely to attach significance to the risks.

Battery and Consent I

Circumstances for a medical emergency, shock or unconsciousness, fatigue or mental incapacity where relatives and next of kin cannot be contacted, there are difficulties in obtaining consent. Where doctors face an unconscious patient, he is entitled to, and probably bound to carry out such treatment as is necessary to safeguard life and health, once he knows that the patient is in no position to consent. This is an aspect of a broader principle of necessity.  If it is impossible to obtain full and free consent, it is a defence to a battery that the action is necessary.

A higher level of disclosure is required in relation to treatment in the context of medical research.  The position is entirely elective.  A full and frank disclosure of the facts, probabilities and risks must be given.

Where doctors treat patients in emergency circumstances, immediate intervention may be necessary before even a consent could be obtained.  A medical professional may come upon an unanticipated health issue in the course of other intervention such as surgery. The question arises whether he may take steps to deal with that matter without consent. The doctor’s obligation extends to all possible risks no matter how remote.  The danger must be material.

The standard in the above cases has been criticised on the basis that as Irish law would appear to require an explanation of risks that are not generally disclosed in accordance with medical practice.  The requirement seems to go further than the inherent defect principles.

Therapeutic Privilege

There is an exception to the obligation to disclose, under so-called therapeutic privilege.  This may apply where the doctor has reasonable grounds for concluding that non-disclosure is required to avoid adverse consequences such as nervous conditions, heart attacks.  The courts seek not to be overly paternalistic in this context.

The courts will take a reasonable approach to the plaintiff’s position as to what he would have done if informed. They will take account of the plaintiff’s actual position as pre-existing, health, finances, employment, and family position.  The test is objective, although the characteristics are of the claimant are taken into account

The Irish courts allow for subjective factors such as related to those of particular patients.  Ultimately, the question is how the particular patient would have reacted, if given the requisite warning.

 Consent Issues

Consent must generally be freely given by a person with legal capacity as to age and mental capacity.  The decision should be based on sufficient information.  The Non-Fatal Offences against the Person Act provide that a person may consent to medical treatment at the age of 16.  This provision specifically applies to surgical, medical and dental treatment. Psychiatric treatment is not mentioned.

There is no express provisions in Irish law in relation to consent on behalf of persons under 16 years.  The courts appear to recognise that the welfare of a child is generally best met by leaving health care decisions to its parents.

Under the Irish Constitution, the patient has a right to withhold consent even if it is objectively wrong. It would appear that the decision of an adult who is mentally competent on an informed basis, is final.  Where the patient’s decision is irrational, it may be scrutinised by the court to examine whether the decision is made on the basis of full mental capacity.  While the person concerned may appear to understand the position, his understanding may be highly irrational and flawed.

If a person is to be treated against his consent, a court order is generally appropriate.  There is scope in Irish law for application to the court in respect to persons of questionable competence. In the case of word of court, there is a formal mechanism for consenting to treat.

Children and Consent

In cases of grave and immediate risks, the courts may overrule the parent’ s decision.  The courts have intervened where the parents have refused life-saving treatment for little good reason, for example in the case of religious objections to necessary blood transfusions.  The Child Care Act provides that in questions of care of the child, the court should as far as practicable give due consideration to his views, having regard to his age and understanding to the wishes of the child.

The parents of very young children. parents will generally be accorded the right to consent on their behalf. However, they may not make decisions which endanger the child’s life or seriously endangers his health.

In the UK, it has been held that a person under 16 with sufficient maturity to understand medical advice may consent to his own medical treatment.  The principle allows in a famous case where her parents sought to prohibit her children from receiving contraception.  The court held that once the child has sufficient understanding and intelligence to understand the medical advice, the child could generally be autonomous.

The courts are more inclined to overrule the child’s refusal of medicine, where there would be obvious risks.  In this situation, the court may direct that is in the child’s best interest that treatment is necessary.

Where a person lacks the capacity to consent to treatment, a decision may be made on his or her behalf as a ward of  court.  The decision will be made in the best interest of the person concerned, where his mental capacity is in doubt or if he is on the borderline of ability to consent.

The Medical Council Guidelines indicate that a competent adult patient has the right to refuse consent.  While the decision must be respected, an assessment of competence on the question of consent should be carried out in conjunction with a senior colleague.