Obtaining consent for examination and treatment

Most doctors are aware of the importance of obtaining consent from patients for examination and treatment. Yet many are uncertain about what this means and fear that their instincts about what is right may not be enough to protect them from legal challenge. The result of this uncertainty may be reluctance to treat in a difficult case or the expenditure of much time and effort avoiding allegations that adequate consent has not been obtained. Sensitivity to consent has thus been a two edged sword: while patients have been protected from indefensible paternalism, they have at the same time been subjected to unnecessary formalities. In the case of psychiatric treatment, extreme sensitivity to consent has, in some jurisdictions, resulted in the denial of treatment to patients who desperately need it.

In the long running consent saga, the courts have been caught between a desire to protect the rights of patients—a role with which the law feels quite comfortable—and a reluctance to impose impossible requirements on the medical profession. In the United Kingdom the courts have generally tried to control consent based actions¹ but have acknowledged that the competent adult ultimately has the right to refuse a medical intervention if he or she so desires. The controversy and legal uncertainty, then, has largely focused on the disclosure of risk, on cases involving children and those who are mentally compromised, and on issues of the limits of consent (does consent to a surgical procedure, for example, permit the use of excised tissue for research?)

The Department of Health has now published an important and exceptionally useful guide to consent for examination or treatment.² The last time the department issued guidance on this issue was over a decade ago, since when there have been important developments. One of these is the introduction into domestic English law of the provisions of the European Convention on Human Rights, a body of principles which is likely to touch virtually every area of the law.³ Consent is a human rights issue, in that respect for bodily integrity and privacy are values that are central to any theory of consent and are, of course, central values in the convention. The shape of English law on this issue is therefore going to be affected by European jurisprudence, although precisely how this will occur remains to be seen.

The guide is admirably clear, setting out how to obtain consent and in what circumstances it might be proper to proceed without it. On the issue of what information needs to be conveyed to the patient for proper consent to be given, the department points out that the case law is still evolving. This is true, and the advice that is given on this topic is helpful and correct, but it highlights a central tension in this matter that continues to frustrate doctors.

Under the long accepted Bolam test,⁴ the standard by which disclosure to patients is judged is that which would be endorsed by a reasonable or responsible body of medical opinion. The test, therefore, was whether what a doctor told the patient met the standards expected of itself by the medical profession. Now, in cases such as Bolitho⁵ and Pearce,⁶ the courts have said that they will depart from the professional practice approach if they see fit, the ultimate legal test being what the court itself thinks was a reasonable amount of information to give the patient. But how, one might wonder, is a doctor going to be able to reach that decision? Doctors cannot guess what the courts are going to say. All that they can do is ask themselves: Is this what my professional peers would consider the proper thing to do? This leaves an element of doubt, which no amount of guidance from the Department of Health will ever be able to dispel. (The answer, of course, is simple and unfashionable: the medical profession should be left some areas where it can safely rely on its own collective judgment and wisdom.)

Disclosure of risk is one of the few remaining areas of uncertainty, as the guide clearly shows. Although there are consent points on which courts in the United Kingdom have still to rule, the general contours of the law are firmly in place. Patient autonomy has triumphed, and people may now decline medical intervention for whatever reason they choose. Advance directives must be followed, except possibly in relation to basic care; refusal of food must be respected; and care must be taken not to exceed the bounds of what is authorised. All of this will strike most contemporary medical practitioners as eminently reasonable, the only question being why it has taken the law so long to get to there.