5035LAW Lecture Notes - Lecture 2: Involuntary Treatment, Gillick Competence, Conjoined Twins
CONSENT
General consent ‘Every human being of adults years and sound mind has the right to determine what should be done
with his own body, and a surgeon who performs and operation without his patient’s consent, commits
and assault, for which he is liable in damages’
-Schloendorf v The Society of the New York Hospital 211 NY (1914) 129, Cardozo J
No Consent -Give option to refuse
-Express or implied
-Written consent required (especially with risky surgery)
-S 245 (assault) could be engaged otherwise
-Doctor must provide patient enough information to make informed decisions
Requirements (1) Must have capacity
(2) Consent freely and voluntarily given
(3) Consent must cover act to be performed
Capacity Definition
-Sch 4 GAA
-Sch 3 PAA
-S 14 MHA
No capacity = no consent
Linked to autonomy
Mental illness and child = diff circs
Adult presumption of having capacity
Process of decision making or rationality decision
Particular decision at a particular time - Must be sufficient understanding of nature and extent
Voluntariness No influence, coercion or manipulation
Re T (Adult: Refusal of medical treatment)
-vulnerable best ill
-line between support and undue influence for family members
-pregnant woman who was in accident
-mother jehovas witness
-spent lots of time with mother after accident
-refused blood transfusion due to mother
-patient signed form for no transfusion due to mothers influence
-woman’s boyfriend applied for transfusion for child
-held
oundue influence
ocapacity – woman was in pain and stressed
Appleton v Garret
-practitioner misrepresented information
-deliberately withheld information as the doctor believe the patient would not consent
Cover act to be
performed
Consent must cover the act performed and patient must have been informed in broad terms of the
nature of the proposed treatment.
-Must be for actual action but can cover unforeseen treatment requirements
Schweizer v Central Hospital
-toe issue removal instead provided spinal surgery
Murray v McMurchy – sterilisation case
Marshall v Curry
-testicle removal required due to hernia
-hernia consent therefore covers other requirements for that
Rogers v Whitaker
-Big risk to her
-Nature of procedure
-Treatment
-Questions by patient
-Temperament of patient
-Other questions reasonable
-Reasonable person in position of patient would attach importance to it
-Eye case
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-She was blind in one eye and having surgery to correct
-Not told of risk that she could become blind in her good eye
Refusal of
treatment
Autonomy prevails
-Self-determination might not prevail however with pregnant women as there is another person
-Treatment in best interests
Re MB (Audlt: refusal of medical treatment)
-accept c section but not anaesthetic cause scared of needles
-found that it was a requirement for the best interests
Norfolk and Norwich Healthcare Trust v W
-right to refuse
-refused c section because believed not pregnant – mental illness history
St George’s Healthcare Trust v S
-rejected surgery for birth
-admitted to psych hospital for period but never had a psychology issue
-the admission was used as evidence regardless
Exceptions -Athletes
-Drivers
-Car accidents
-Emergency
-Reasonable
-Medical emergency (s 282)
Child consent
Age Not reached 18 years
-S 17 Law Reform Act
-Common law for under this age
Gillick
-child under 16
-mother argued her consent not given
-child was prescribed contraceptive pills
-doctors allowed to prescribe contraceptive without consent
-parents authority of child not right
-decreases as child obtains capacity
Exception = consent when medical emergency, blood transfusion without consent if required, best
interests of child overrides everything
Very young
children
Parents to consent generally but best interests of child considered
Marion’s case
-where child not capable parents or guardians consent
-parents have duty to provide consent – Family Law Act
-sterilisation of disabled girl who could not do a lot on her own
-parents worried about menstruation and other aspects
-beyond parents power to allow
-factors:
oparticular condition which requires procedure or treatment
onature
oreasons
oalternative courses of treatment available
odesirability of and effect of authorising this treatment
ophysical effect, psychological and social implications for child or young person for and against
treatment
onature and degree of any risk
oview s expressed by guardians of child/young person
Young children Best interests
General exception
-if not in best interests parent decision can be overridden by court
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Schloendorf v the society of the new york hospital 211 ny (1914) 129, cardozo j. Written consent required (especially with risky surgery) Doctor must provide patient enough information to make informed decisions (1) must have capacity (2) consent freely and voluntarily given (3) consent must cover act to be performed. Particular decision at a particular time - must be sufficient understanding of nature and extent. Woman"s boyfriend applied for transfusion for child: undue influence, capacity woman was in pain and stressed. Consent must cover the act performed and patient must have been informed in broad terms of the nature of the proposed treatment. Must be for actual action but can cover unforeseen treatment requirements. Reasonable person in position of patient would attach importance to it. Temperament of patient toe issue removal instead provided spinal surgery testicle removal required due to hernia hernia consent therefore covers other requirements for that. She was blind in one eye and having surgery to correct.
