Comparative Healthcare Law

Peter De Cruz

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135341121
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book provides a comparative and accessible analysis of key areas of healthcare law, comparing English law with selected common and civil law jurisdictions within a framework of law and medical ethics, and encompassing pivotal cases, codes and legislation. The introduction examines medical decision making, and legal and ethical frameworks in Western and non-Western cultures.

Part I examines healthcare law in England and Wales, including abortion, consent, confidentiality, children, euthanasia, persistent vegetative state patients, organ transplantation, sterilisation of the mentally incapacitated, surrogacy, UK cloning proposals and the landmark conjoined twins case. Part II covers non-English common law jurisdictions such as Australia, New Zealand, Ireland and certain American jurisdictions. Civil law examples focus on France and Germany, and, where appropriate, Scandinavian countries. International perspectives on abortion laws and euthanasia are also provided.

The book concludes with a comparative overview, which highlights common healthcare themes across various jurisdictions. Comparative Healthcare Law brings together information never previously accessible within the covers of one volume, making this unique book indispensable for scholars and practitioners in the field of healthcare law.

PART I
HEALTHCARE LAW IN ENGLAND AND WALES

CHAPTER 1
CONSENT TO MEDICAL TREATMENT

INTRODUCTION

In the Report of the Select Committee of Medical Ethics (1994), para 40 states:

Alongside the principle that human life is of special value, the principle is widely held that an individual should have some measure of autonomy to make choices about his or her life. Such autonomy has become important in relation to medical treatment, as the relationship between doctor and patient has changed to one of partnership. As the law stands, medical treatment may be given to competent adult patients only with their informed consent, unless in an emergency.

While there is a circular entitled A Guide to Consent for Examination or Treatment, and guidance issued by the BMA to doctors, the notion of consent is by no means straightforward in its scope or application. This chapter concentrates on consent to treatment in English law, examining its history and the general principles, consent and the pregnant patient, and consent issues for the mentally incapacitated adult (the comparative survey is contained in Chapter 10, which deals with the origins of the notion of consent in American law and other non-English jurisdictions).

THE ETHICAL FRAMEWORK

The notion or principle of consent to medical treatment is often stated to be the prerequisite to treatment of adults of sound mind and is generally regarded as a fundamental principle in medical treatment. Consent is necessary, in law, as a defence to an action in battery or negligence and is sometimes described as the ‘doctrine’ of informed consent, but as we shall see shortly, this notion more accurately describes the American rather than English version of consent to medical treatment. Of course, the requirement of consent can have several functions. For instance, Professor Margaret Brazier (1991) has argued that: (a) requiring consent affirms and safeguards the patient’s autonomy; (b) consent makes manifest respect for persons; (c) informed participation in healthcare may assist and enhance the quality of that care; (d) requiring consent from patients and research subjects operates as a means of regulating medical practice and research and of preventing abuses. Hence, the need for consent serves several functions: first, to promote individual autonomy; secondly, to encourage rational decision making, both of which derive from the basic principle of the right to self-determination, which has been reaffirmed by the English courts. Lord Donaldson MR stated, in 1989: ‘The ability of the ordinary adult to exercise a free choice in deciding whether to accept or refuse medical treatment and to choose between treatments is not to be dismissed as desirable but inessential. It is a crucial factor in relation to all medical treatment’ (see In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1). This is now contained in the Human Rights Act 1998 (Art 2, the ‘right to life’, whereby there is a positive obligation to give life-sustaining treatment – because there is no derogation to the principle that ‘everyone’s right to life shall be protected by law’ – and Art 8, which protects the patient’s right to personal autonomy or the right to physical and bodily integrity (the ‘right to respect for private and family life’)). Finally, the rules on consent (for example, consent has to be ‘real’ to be meaningful) were intended to impose on health professionals ‘an obligation to make appropriate disclosure of relevant information to the patient, so that the exercise of autonomy was meaningful’ (McLean, S, Consent and the Law: Review of the Current Provisions in the Human Fertilisation and Embryology Act 1990 for the UK Health Ministers, 1997, HMSO). Hence, as we see in the following discussion, any touching without consent is prima facie against the law, rendering the perpetrator liable to an action for assault. It is clear, however, that the underlying ethical principle is self-determination , and this is complemented by the principle of respect for persons.

INFORMED CONSENT IN ENGLISH LAW

In order to determine the status of the notion/doctrine/concept of informed consent, one would do well to echo the words of Gerald Robertson, writing in 1981, when he wrote that any writer attempting to examine the status of the ‘doctrine’ (sic) of informed consent in English law ‘must do so with a considerable degree of caution’ (Robertson (1981), p 112). Although Robertson was writing nearly 20 years ago, a commentator writing in the Journal of Medical Ethics, published in 2000, in the context of medical ethics and biomedical ethics, could still justifiably remark that this notion of consent is ‘relatively new’ and, in historical terms, ‘there is no reference to the concept in Egyptian, Greek or Roman medicine’ (Habiba (2000), p 183). Moreover, in a leading textbook on law and medical ethics, the eminent authors observe that consent is ‘a doctrine which lies surprisingly uneasily in the medico-legal ambience of the United Kingdom’ (Mason and McCall Smith (1999), p 245).

But what does ‘informed consent’ actually mean in English law? As Professor Michael Jones puts it, ‘[t]here are many different conceptions of what this involves’ (Jones (1999), p 103). We need to be aware that the term has been called a ‘misnomer’, in so far as it describes a doctor’s duties rather than the patient’s reaction (which is the view of Tan Keng Feng (1987)), and ‘tautologous’ (Mason and McCall Smith (1999), p 278), because, they argue, ‘to be ethically and legally acceptable, “consent” must always be “informed” and consequently, they argue that the first element of the phrase is redundant (Mason and McCall Smith (1999), p 278). Professors Kennedy and Grubb have argued that the term ‘informed consent’ is ‘not synonymous with valid consent’ because it gives only a partial view, and because the requirement that consent be ‘informed’ is only one of the ingredients of a valid consent (although it is a very important one): see Kennedy and Grubb (1994), p 151).

In a paper published in 1999, Professor Michael Jones lists six weaknesses of the English law of informed consent (Jones (1999), pp 105–08):

• He argues there is no English law of informed consent; conceptually, consent in law is a defence to the tort of battery, and battery requires a touching of the patient, a direct application of force. Consequently, any situation where the treatment does not involve a touching, such as self-administered medication provided on prescription, cannot be governed by principles of consent, though the requirement for information disclosure within the context of a negligence claim based on a duty to inform the patient about the risks associated with the medication, still applies.
• Where there has been a failure to obtain appropriate consent, the courts are extremely reluctant to contemplate claims based in battery, which is an intentional tort.
• The law’s guidance, such as it is, is both ad hoc and post hoc; it can never be a comprehensive framework, unlike the guidance provided by the medical profession itself, which can be more specific and more likely to be acted upon by doctors.
• The law is not widely known and probably even less well understood by the medical profession.
• Obtaining consent may become too formalistic if viewed purely as a medico-legal requirement, as a means of protecting doctors from litigation, yet the requirement for consent is presented in this way by some judges.
• The law of informed consent does not work, at least as a remedy for breach of the ‘rules’ on information disclosure.

In addition to these points, it bears reiterating that commentators such as Michael Jones have argued that: ‘Technically, English law does not have a concept of informed consent except in the very limited form accepted in Chatterton v Gerson [1981] QB 432, where the patient only needs to be informed “in broad terms of the nature of the procedure which is intended”’ (Jones, 1999). With respect, it depends on what Professor Jones means when he uses the term ‘concept’. If he is using the term as a synonym for doctrine, then there can be little argument. But, the term concept can also be used as a notion or idea and the notion or idea of informed consent, at least with a core of meaning, certainly does exist in English law. The fact that it is applied ad hoc and post hoc does not diminish its basic content or nullify its existence as a concept which, at the very least, is a basic requirement. Surely, the very nature of the term and the inevitability of the variability of the medical context must make it a concept that adapts to the particular set of circumstances. Indeed, English case law illustrates that there are fairly well established sets of rules which govern the English version of informed consent, which we examine below. Hence, one needs to define one’s terms and be wary of judicial pronouncements such as those of Dunn LJ when he said, in Sidaway, ‘The concept of informed consent forms no part of English law’ (Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 All ER 1018, p 1030); here, he was almost certainly referring to the subjective patient (American-derived) approach – judging what needs to be disclosed by what the individual patient would have needed to know rather than by an objective standard of disclosure. Again, Lord Donaldson’s statement in Re T, when he said ‘English law does not accept the transatlantic concept of informed consent’ (see Re T (Adult) (Refusal of Medical Treatment) [1992] 4 All ER 649, p 663; [1992] 9 BMLR 46, p 61), has to be read with the caveat that he was probably referring to some form of the American ‘doctrine’ which conforms to some ‘subjective’ standard that would vary from patient to patient; yet, the majority of the American jurisdictions appear to adhere to the ‘professional standard’ of disclosure, which is an objective standard which would look more to the ‘reasonable’ patient’s standards.

As far as English courts were concerned, in the 1997 case of Re MB [1997] 2 FLR 426, the English Court of Appeal unequivocally reaffirmed the English principle of autonomy and self-determination, albeit in the context of the Caesarean section cases (discussed below, p 13 et seq). This suggests that patients should have the right to decide for themselves, yet the English cases suggest that it is still the medical profession which decides how much a patient should be told in order to make a decision as to whether to consent to a particular medical procedure or treatment (following the Bolam principle as it has come to be interpreted in the vast majority of cases in England and Wales), and the English judiciary have, up to Re MB, and in cases involving children under 16, or those considered lacking legal capacity to decide for themselves, have applied their standard of welfare to authorise medical treatment even in the face of refusal of such treatment (see discussion on p 13 in this chapter and Chapter 4). On a comparative note, in jurisdictions such as the USA, Australia and Canada, there is a concept of informed consent which looks to what the reasonable patient, in the plaintiff’s position, would consider significant enough to warrant disclosure in order to make a sufficiently informed decision on treatment (the ‘prudent patient’ approach). This, therefore, focuses on the needs of the patient, rather than on what the doctor considers the patient needs to know.

Legal consequences of proceeding without consent

Prima facie, any touching of another without consent amounts to a civil assault/battery or trespass to the person. The patient may, therefore, sue for damages for the battery which is committed if non-consensual treatment is carried out. However, a claim may also lie under the tort of negligence. An action for battery arises when the plaintiff has been physically touched by the defendant without the defendant’s consent, express or implied, to such touching. In an action for battery, there is no need to establish loss as a result of the touching, so long as the plaintiff can establish that the defendant wrongfully touched him. Hence, where there is no consent whatever to the physical contact, a civil action for battery would be appropriate.

However, if the patient has given consent to treatment, and an unexpected injury is sustained, the question of how much information should have been disclosed arises and the legal position is that provided the patient has been informed in broad terms of the risks of the treatment, then any action for injury suffered by the plaintiff based on failure to disclose risks of treatment will lie in negligence. This was the effect of Chatterton v Gerson [1981] 1 All ER 257, a case dealing with battery.

Therefore, an action in negligence would have to establish that the defendant wrongfully touched him and that the negligence of the defendant in treating him resulted in the injury for which damages are sought. There might often have been consent to a specific procedure, but not to the particular procedure which caused the injury. The treatment must be related to the consent to specific treatment and must not exceed what is necessary for the patient’s survival. The illustrative English case is Devi v West Midlands RHA (1981), CA transcript 491, where the surgeon, believing it was in the patient’s best interests, removed her uterus when all the patient had consented to was the repair of a perforation in her uterus. The court found the case for a battery proved. The parallel non-English example is usually provided by the Canadian case of Marshall v Curry (1933) 3 DLR 260, where the plaintiff’s testicle was removed by a surgeon in the course of performing a hernia operation. The doctor’s case, which the court accepted, was that the removal was essential to a successful operation, because the testis was diseased, and non-removal would have endangered the patient’s life. The court also accepted that the removal of the testicle was necessary and could not have been deferred to a later date.

CONSENT TO MEDICAL TREATMENT UNDER ENGLISH COMMON LAW

Historical background – American roots

It is often assumed that it is a well established principle in English law that consent (in the sense of assent or agreement) needs to be obtained before an adult, mentally competent patient can be lawfully treated by a doctor or health professional. Indeed, it is a commonplace that textbooks on medical law, family law and tort law often begin expositions of the law relating to consent with a reference or quotation from the 1914 American case decided by Cardozo J wherein he said: ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body …’ (see Schloendorff v Society of New York Hospital, 105 NE 92 9 (NY, 1914)). This case is often seen as heralding the development of the doctrine of ‘informed consent’ in the USA, although the seeds of the doctrine properly so called were sown in the USA from around 1957 in Salgo v Leland Sta...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• PREFACE
• TABLE OF CASES
• TABLE OF STATUTES
• TABLE OF STATUTORY INSTRUMENTS
• TABLE OF INTERNATIONAL LEGISLATION
• ABBREVIATIONS
• INTRODUCTION BACKGROUND, PRINCIPLES AND THE MAKING OF MEDICAL DECISIONS IN HEALTHCARE LAW
• PART I: HEALTHCARE LAW IN ENGLAND AND WALES
• PART II: COMPARATIVE PERSPECTIVES