Consent
Legal Cases

These cases show how the importance of Patient Autonomy has developed over the years, and how the Medical Paternalism ("Doctor Knows Best") model has lost favour, with original judgements being modified or overturned as time has passed.

Medical Negligence

To revise these negligence cases as a self-assessment Click here

1957. Bolam v Friern Hospital Management Committee

Mr Bolam underwent electro-convulsive therapy to treat his mental illness, at Friern Hospital. He was not given any relaxant drugs, and his body was not restrained during the procedure. He flailed about violently during the procedure and broke his hip. He sued the hospital for compensation. 

He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved. 

Was the hospital found negligent? What legal principle was established?
 


1981. Chatterton vs Gerson

A woman received an injection to relieve chronic pain. The injection was not successful with respect to the pain but made her leg go numb, and the woman sued in Trespass to the Person as well as negligence claiming that she had not been properly informed of the potential consequences of the treatment. As a result her consent was not valid and the injection constituted battery.

Was the doctor found guilty of battery? Was he negligent? What legal principle was established?
 


1985. Sidaway v. Bethlem Royal Hospital Governors

This case concerns the duty of a surgeon to inform a patient of the risks before undergoing an operation.

The claimant suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the decompression caused paraplegia. She developed paraplegia after the spinal operation, and claimed for damages.

Did the claim for damages succeed? What legal principle was established?
 


1997. Bolitho v. City and Hackney Health Authority.

Mr Bolitho's young son was admitted into hospital for respiratory difficulties and was place under the care of Doctor Horn. The Doctor didn't see the patient when the nurse had called her nor did her junior Dr Rodger. The patient therefore was not intubated. The patient later suffered respiratory arrest, then cardiac arrest with severe brain damage. He eventually died.

The doctors argued that even if they had seen the patient on admission, they would not have intubated (he was conscious and talking), and this could be confirmed by a reliable and respectable body of opinion - The Bolam Test. However, other medical witnesses disagreed, saying that early intubation should have been done.

Were the doctors found negligent?  What legal principle was established?
 


2004. Chester v Afshar
Miss Chester was referred to Dr Afshar, a neurological expert, about some lower back pain. He told her that surgery was a solution, but did not inform her of the 1-2% risk of these operations going wrong. She suffered a complication, called cauda equina syndrome.

Did the judge find consent was given? How did this case modify the "Sidaway Ruling"?
 



OK ▲


1957. If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent.

The UK case of Bolam v Friern Hospital Management Committee was a medical negligence case. Mr Bolam underwent electro-convulsive therapy to treat his mental illness, at Friern Hospital. He was not given any relaxant drugs, and his body was not restrained during the procedure. He flailed about violently during the procedure and broke his hip. He sued the hospital for compensation.

He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved.

The jury

more... (in those days it was a jury, not a judge who decided) OK
supported the hospital. Given the general medical opinions about what was acceptable electro-shock practice, they had not been negligent.

The Bolam Principle may be summarised as a rule that a doctor, nurse or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice. But see how the Bolitho case modified this judgement in 1997 (below).



1981. Doctors (and dentists) do not have to tell a patient of all the risks...

The UK legal case of Chatterton vs Gerson was a medical negligence case, where a woman received an injection to relieve chronic pain. The injection was not successful with respect to the pain but made her leg go numb, and the woman sued in Trespass to the Person as well as negligence claiming that she had not been properly informed of the potential consequences of the treatment. As a result her consent was not valid and the injection constituted battery.

The judge held that broad consent to receive the treatment was sufficient to remove the battery because information was not withheld in bad faith or with intent to cause harm. It was felt that failures of doctors to adequately do their job should not be pleaded in Trespass to the Person in any case.

The negligence claim also failed, since the judge felt that even if the consent been more informed, the woman would probably have consented and would need to demonstrate that she would not have. 

(Retrieved from http://www.oddflower.org/gdl/index.php/Chatterton_v_Gerson_%281981%29 on 13/2/11 )

This judgement implied that doctors (and dentists) do not have to tell a patient of all the risks, just those that they think would affect the final decision of consenting or not consenting. 


1985. Consent does not require an elaborate explanation of remote side effects.
Sidaway v. Bethlem Royal Hospital Governors  is an important House of Lords case in English tort law concerning the duty of a surgeon to inform a patient of the risks before undergoing an operation.

The claimant suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the decompression caused paraplegia. She developed paraplegia after the spinal operation.

The claim for damages was rejected. The court held that consent did not require an elaborate explanation of remote side effects.
more...  The verdict was not unanimous: one judge said that at a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed, but this was overruled by a majority decision. But see below...  OK



1997. When there are two widely-held but differing opinions on correct treatment, the judge can decide if one is unreasonable.

Bolitho
v. City and Hackney Health Authority. Mr Bolitho's young son was admitted into hospital for respiratory difficulties and was place under the care of Doctor Horn. The Doctor didn't see the patient when the nurse had called her nor did her junior Dr Rodger. The patient therefore was not intubated. The patient later suffered respiratory arrest, then cardiac arrest with severe brain damage. He eventually died.

The doctors argued that even if they had seen the patient on admission, they would not have intubated (he was conscious and talking), and this could be confirmed by a reliable and respectable body of opinion - The Bolam Test. However, other medical witnesses disagreed, saying that early intubation should have been done. 

In this case, the judge actually found the treating doctors were not negligent, but made a ruling that, in rare circumstances, a judge could decide if a "responsible body of medical opinion" was in fact unreasonable.

This is a modification of the Bolam Principle, and it means that a court can review common practice to ensure it is reasonable and responsible. It means that the classic Bolam Defence - "Lots of us do it that way" - may not be enough if "that way" is considered by a judge to be unreasonable.


2004. Consent does require mention of remote side effects.
Chester v Afshar. Miss Chester was referred to Dr Afshar, a neurological expert, about some lower back pain. He told her that surgery was a solution, but did not inform her of the 1-2% risk of these operations going wrong. She suffered a complication, called cauda equina syndrome. The judge found that there was a causal connection between the failure to inform and Miss Chester's injuries - if she had been informed, she would have sought further advice or alternatives. 

This judgement was made some time after the Sidaway case. It emphasises the import thing to consider - might the patient have changed their mind if they had known all the facts.

2015. Montgomery v Lanarkshire Health Board
This case also went against the Sidaway ruling. A diabetic pregnant mother was not told of the slightly increased risk for diabetics that, with a normal delivery, there might be cerebral palsy from oxygen lack (secondary to shoulder dystocia), as the doctor felt the increased risk was very small. The mother successfully argued that, had she known of the risk she would have opted for a caesarian section.


2008. GMC advises that all serious risks are discussed, as well as common minor risks.
In their document Consent: Patients and Doctors Making Decisions Together, the UK General Medical Council advises: you must tell patients if an investigation or treatment might result in a serious adverse outcome, even if the likelihood is very small. You should also tell patients about less serious side effects or complications if they occur frequently, and explain what the patient should do if they experience any of them.

(Retrieved from  http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_discussing_side_effects_and_complications.asp on 13/2/11 )



Child Consent

1985. The Gillick decision: Children may be able to consent to treatment.

Gillick competence is a term originating in England and is used in medical law to decide whether a child (16 years or younger) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge.

The Gillick case involved a health departmental circular advising doctors on the contraception of minors (for this purpose, under sixteens). The circular stated that the prescription of contraception was a matter for the doctor's discretion, and that they could be prescribed to under sixteens without parental consent. 

This matter was litigated because an activist, Mrs. Victoria Gillick (née Gudgeon), ran an active campaign against the policy. Mrs Gillick sought a declaration that prescribing contraception was illegal because the doctor would commit an offence of encouraging sex with a minor, and that it would be treatment without consent as consent vested in the parent. 

The issue before the House of Lords was only whether the minor involved could give consent. 'Consent' here was considered in the broad sense of consent to battery or assault:  in the absence of patient consent to treatment a doctor, even if well-intentioned, might be sued/charged. 

The House of Lords focussed on the issue of consent rather than a notion of 'parental rights' or parental powers. In fact, the court held that 'parental rights' did not exist, other than to safeguard the best interests of a minor. The majority held that in some circumstances a minor could consent to treatment, and that in these circumstances a parent had no power to veto treatment. 

Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both). Lord Scarman's test is generally considered to be the test of 'Gillick competency'. He required that a child could consent if he or she fully understood the medical treatment that is proposed.

The ruling holds particularly significant implications for the legal rights of minor children in England in that it is broader in scope than merely medical consent. It lays down that the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child's evolving maturity; except in situations that are regulated otherwise by statute, the right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision.

http://en.wikipedia.org/wiki/Gillick_competence

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