Seminar 4 - Consent
The concept of consent is underpinned by the notion of personal autonomy. There will be
some situations in which a patient cannot give consent. The law must recognise some
exceptions to the general rule that treatment can only be provided where there is a valid
consent - these are needed to provide protection for both vulnerable patients and medical
practitioners.
There is a distinction between consent per se and the notion of informed consent. In the
former the law is concerned with the presence or absence of consent for the purposes of
attributing liability in tortious battery. However, once the patient is informed in broad terms
about the nature of the procedure intended, liability in battery is discharged (Chatterton v
Gerson [1981] QB 432). The focus of the tortious action is then switched to negligence as a
component of a doctor’s duty of disclosure. Here the legal inquiry centres not on the
presence or absence of consent, but instead on the amount and type of information that
ought to be provided to a patient before an operation. There has been a considerable
amount of debate about the most appropriate way to judge the adequacy of clinicians’ pre-
operative disclosure.
Reading
Textbook
Cases
A Hospital NHS Trust v CD [2015] EWCOP 74.
Issue involved a 43 year old woman who suffered from paranoid schizophrenia. Was it in her
best interest to have a total abdominal hysterectomy in circumstances where she lacked
capacity to make that decision for herself.
Mostyn J had no difficulty in finding that CD manifestly lacked capacity to make the relevant
decision. The question was whether CD was ineligible to be deprived of her liberty because
the surgical removal of the ovarian masses was not in accordance with the MHA regime.
There were two ways of reading this which gave rise to directly contradictory results. Mostyn
J adopted a purposive (rather than literal) reading of paragraph 3(2) to schedule 1A to the
MCA which permitted him to make the orders sitting in the Court of Protection under the
MCA rather than in the High Court exercising power under the common law inherent
jurisdiction.
Wye Valley NHS Trust v B [2015] EWCOP 60; (2015) 18 CCL Rep 733.
The applicant NHS trust sought a declaration that it would be lawful for the doctors treating a
73-year-old man with a severely infected leg, to amputate his foot against his wishes in order
to save his life.
The patient had a longstanding mental illness, dating from his 20s when both of his parents
died, that deprived him of the capacity to make the decision for himself. The patient suffered
from bipolar affective disorder with psychotic symptoms. As a result, he experienced auditory
hallucinations that told him whether or not to take his medication.
, The patient strongly opposed the proposed operation, without which he would die shortly. It
was held not to be in the patient’s best interests to sanction the amputation, even though not
undergoing the operation would lead to his death. He was strongly opposed to the operation,
and it was of great importance to give proper weight to his wishes and feelings.
Montgomery v Lanarkshire Health Board [2015] UKSC 11.
Montgomery provides confirmation of the prudent patient standard of disclosure, subject to
the therapeutic privilege.
● Allegation of negligent pre-operative disclosure.
● The appellant contended that she ought to have been advice about the risk of
shoulder dystocia.
● The appellant suffered from diabetes.
● It was agreed that the risk was 9 – 10 per cent.
● She claimed that had she been told about this risk, she would have opted for a
caesarean section.
The appellant won the case.
Re DD (No.4) (Sterilisation) [2015] EWCOP 4.
36 year old woman with autistic spectrum disorder. Had IQ of 70, and partner had IQ of 62.
She was 6 children all raised by 6 carers.
Taking away a person’s ability to have a child is truly draconian. It may be justified in
extreme circumstances, but immense care must be taken to safeguard the rights of people
with mental health conditions.
A declaration of lawfulness was sought for her sterilisation.
Cheshire West and Chester Council v P [2014] UKSC 19; [2014] AC 896.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237; (2008) 104 BMLR 168.
R (Axon) v Secretary of State for Health [2006] EWHC 37 (Admin); [2006] QB 539.
Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176.
Al Hamwi v Johnston and Another [2005] EWHC 206.
Portsmouth NHS Trust v Wyatt [2005] EWCA Civ 1181 ; [2005] 1 WLR 3995.
Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134.
HL v United Kingdom (45508/99) (2005) 40 EHRR 32; 17 BHRC 418.
Wyatt v Curtis [2003] EWCA Civ 1779; [2003] WL 22827037.
Re A (Children) (Conjoined Twins: Medical Treatment) [2001] Fam 147.
Rosenberg v Percival (2001) 205 CLR 434.
Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167.
The concept of consent is underpinned by the notion of personal autonomy. There will be
some situations in which a patient cannot give consent. The law must recognise some
exceptions to the general rule that treatment can only be provided where there is a valid
consent - these are needed to provide protection for both vulnerable patients and medical
practitioners.
There is a distinction between consent per se and the notion of informed consent. In the
former the law is concerned with the presence or absence of consent for the purposes of
attributing liability in tortious battery. However, once the patient is informed in broad terms
about the nature of the procedure intended, liability in battery is discharged (Chatterton v
Gerson [1981] QB 432). The focus of the tortious action is then switched to negligence as a
component of a doctor’s duty of disclosure. Here the legal inquiry centres not on the
presence or absence of consent, but instead on the amount and type of information that
ought to be provided to a patient before an operation. There has been a considerable
amount of debate about the most appropriate way to judge the adequacy of clinicians’ pre-
operative disclosure.
Reading
Textbook
Cases
A Hospital NHS Trust v CD [2015] EWCOP 74.
Issue involved a 43 year old woman who suffered from paranoid schizophrenia. Was it in her
best interest to have a total abdominal hysterectomy in circumstances where she lacked
capacity to make that decision for herself.
Mostyn J had no difficulty in finding that CD manifestly lacked capacity to make the relevant
decision. The question was whether CD was ineligible to be deprived of her liberty because
the surgical removal of the ovarian masses was not in accordance with the MHA regime.
There were two ways of reading this which gave rise to directly contradictory results. Mostyn
J adopted a purposive (rather than literal) reading of paragraph 3(2) to schedule 1A to the
MCA which permitted him to make the orders sitting in the Court of Protection under the
MCA rather than in the High Court exercising power under the common law inherent
jurisdiction.
Wye Valley NHS Trust v B [2015] EWCOP 60; (2015) 18 CCL Rep 733.
The applicant NHS trust sought a declaration that it would be lawful for the doctors treating a
73-year-old man with a severely infected leg, to amputate his foot against his wishes in order
to save his life.
The patient had a longstanding mental illness, dating from his 20s when both of his parents
died, that deprived him of the capacity to make the decision for himself. The patient suffered
from bipolar affective disorder with psychotic symptoms. As a result, he experienced auditory
hallucinations that told him whether or not to take his medication.
, The patient strongly opposed the proposed operation, without which he would die shortly. It
was held not to be in the patient’s best interests to sanction the amputation, even though not
undergoing the operation would lead to his death. He was strongly opposed to the operation,
and it was of great importance to give proper weight to his wishes and feelings.
Montgomery v Lanarkshire Health Board [2015] UKSC 11.
Montgomery provides confirmation of the prudent patient standard of disclosure, subject to
the therapeutic privilege.
● Allegation of negligent pre-operative disclosure.
● The appellant contended that she ought to have been advice about the risk of
shoulder dystocia.
● The appellant suffered from diabetes.
● It was agreed that the risk was 9 – 10 per cent.
● She claimed that had she been told about this risk, she would have opted for a
caesarean section.
The appellant won the case.
Re DD (No.4) (Sterilisation) [2015] EWCOP 4.
36 year old woman with autistic spectrum disorder. Had IQ of 70, and partner had IQ of 62.
She was 6 children all raised by 6 carers.
Taking away a person’s ability to have a child is truly draconian. It may be justified in
extreme circumstances, but immense care must be taken to safeguard the rights of people
with mental health conditions.
A declaration of lawfulness was sought for her sterilisation.
Cheshire West and Chester Council v P [2014] UKSC 19; [2014] AC 896.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237; (2008) 104 BMLR 168.
R (Axon) v Secretary of State for Health [2006] EWHC 37 (Admin); [2006] QB 539.
Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176.
Al Hamwi v Johnston and Another [2005] EWHC 206.
Portsmouth NHS Trust v Wyatt [2005] EWCA Civ 1181 ; [2005] 1 WLR 3995.
Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134.
HL v United Kingdom (45508/99) (2005) 40 EHRR 32; 17 BHRC 418.
Wyatt v Curtis [2003] EWCA Civ 1779; [2003] WL 22827037.
Re A (Children) (Conjoined Twins: Medical Treatment) [2001] Fam 147.
Rosenberg v Percival (2001) 205 CLR 434.
Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167.
