Consent to treatment : an inviolable right?

A fundamental cornerstone of contemporary medical law ethics is the acquirement of a patient’s consent before proceeding onto any treatment. Paternalistic approaches where the doctor would impose treatment on a patient are no longer acceptable in our modern-day European human rights culture.

Indeed, it can readily be argued that operating on a competent patient without his consent would be a contravention of a patient’s right not to suffer torture or inhumane or degrading treatment.[1] The doctor-patient relationship has undoubtedly evolved and consequently, its anomalies have been brought to the fore.

Legal considerations regarding the right to consent :

A health practitioner who touches a patient without his consent, whether intentionally or recklessly, is committing a crime (assault) and a tort (trespass to the person or negligence). For there to be a valid consent to treatment it is not enough for the patient to simply say “yes”. It must be shown that the person was competent, sufficiently informed and was not subject to any coercion or undue influence[2]. It is presumed that all adults have sufficient capacity to decide on their own medical treatment. The Mental Capacity Act 2005 s1 (2) clearly stipulates that a medical professional should presume that a patient is competent, unless there is evidence to suggest that he is not.[3] Article L1111-4 of the French Code de la santé publique, specifically the third paragraph, edicts the necessity of informed consent[4]. A patient can only provide consent if given the necessary information to make a proper decision. The UK did not recognise the doctrine of informed consent until the groundbreaking decision in Montgomery v Lanarkshire Health Board[5]. In the past, it would suffice if the patient understood “in broad terms the nature of the procedure which is intended”[6]. Nonetheless, oncologists are challenged by informed consent in the context of chemotherapy; with cancer patients the effects of consent to treatment can indubitably be dreadful and it may prove impossible to communicate every associated risk and side effect.

Ethical considerations concerning the right to consent :

The principle of autonomy, albeit complex, must be respected. Forcing a treatment on a non-consenting patient will have serious repercussions of public outcry[7]. Lord Steyn eloquently stated in Chester v Afshar that informed consent of a patient serves two purposes. It avoids the occurrence of the particular physical injury the risk of which a patient is not prepared to accept and ensures that due respect is given to the autonomy and dignity of each patient.[8] Whilst a patient retains the right to refuse a treatment[9], there is currently no legal right in the UK to demand treatment. The “doctor knows best” approach is not very popular in modern medicine. Today, doctor and patient mutually engage in the decision-making with the final decision on treatment being that of the patient. Respect for autonomy is fundamental for ethical practice.

Christina AVGOUSTI

Pour en savoir plus:

Emily Jackson, Medical Law, Text, Cases and Materials, (4ed. 2013)

Jonathan Herring, Medical Law and Ethics, (5ed.2014)

[1] Article 3 of the European Convention on Human Rights, cf. R (N) v Dr M [2002] EWCA 1789

[2] Freeman v Home Office [1986] 1 All ER 1036

[3] R v Sullivan [1984] AC 156, 170

[4] Aucun acte médical ni aucun traitement ne peut être pratiqué sans le consentement libre et éclairé de la personne et ce consentement peut être retiré à tout moment

[5] [2015] UKSC 11 per Lady Hale at 107

[6] Chatterton v Gerson [1981] 1 ALL ER 257

[7] Site BBC.co.uk, Article du 03/10/2015, “The French patients subjected to intimate examinations-without consent”

[8] Chester v Afshar [2004] UKHL 41

[9] Airedale NHS Trust v Bland [1993] AC 789