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Essay: The Fundamental Right of Patients to Consent to Medical Treatment in the Irish Jurisdiction

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  • Published: 1 April 2019*
  • Last Modified: 23 July 2024
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  • Words: 2,043 (approx)
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Consent is a self-determination principle which stems from the Constitutionally protected right to bodily integrity. If a medical practitioner touches the body of a patient without their prior consent they are liable under the tort of battery even if the touching is in accordance with a medical procedure. Consent can be oral, written, or in some cases implied. It is possible for procedures to be carried out without the presence of consent under the ‘doctrine of necessity.’ However, this is only when the procedure is necessary to preserve the life of the patient. The concept of informed consent is recent and represents a shift from paternalism to autonomy. Cordozo J famously said:

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patients consent commits an assault for which he is liable in damages.”

In the UK case of Bolam v Friern Hospital Management Committee, the Plaintiff, Mr. Bolam, suffered from depression and during Electroconvulsive Therapy he suffered fractures. The Doctor knew of this risk but had not informed the Plaintiff who claimed that this failure to inform him of the risks involved constituted negligence. The Court held that a medical practitioner will not be deemed negligent if ‘they act in accordance with a practice accepted at the time as proper by a responsible body of medical practitioners.’ The amount of information given to Mr. Bolam accorded with accepted medical practice. The ‘Bolam Test’ was born and is based on that of the ‘reasonable practitioner.’

In Sidaway v Board of Governors of Bethlem Royal Hospital the House of Lords adopted the ‘Bolam Test.’ In Lord Diplock’s judgement he formed the view that a practitioner should not distress their patient by notifying them of the risks of a procedure, no matter how serious, unless asked by their patient, so long as the course of treatment is in the best interests of the patient. However, this stance was opposed by Lord Scarman who stated in his dissenting judgement that doctors should make full disclosure of any risk posed to a patient during a medical procedure. Full disclosure should be made as it gives the patient, the opportunity to decide whether or not to undergo the procedure. The majority sided with Lord Diplock’s view however and it was held that ‘consent did not require an elaborate explanation of remote side effects.’

In Rogers v Whitaker the Australian High Court rejected the ‘Bolam Test’ and held that a doctors duty of disclosure is:

“to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of a particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient if warned would be likely to attach significance to it. this is subject to the therapeutic privilege.”

Another significant case in relation to the doctrine of informed consent is the American case of Canterbury v Spence  where Robinson J held that a medical practitioner must disclose all risks which a reasonable person would consider to be significant in deciding whether or not to undergo the procedure. Both cases reject the ‘Bolam Test’ adopting a test based on the ‘reasonable patient.’

The leading Irish case in relation to medical negligence is Dunne v National Maternity Hospital where the Supreme Court held that in order for negligence to be established, it must be proved by the plaintiff that the defendant (practitioner) was:

“guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.”

On the face of it, this would appear to be an adoption of the ‘Bolam Test’, however, Finlay CJ also held that if a practitioners practice has ‘inherent defects’ that would be obvious to anyone giving it due consideration, then that practitioner would not be safeguarded under general and approved practice and would be guilty of negligence. He then went on to say that ‘in the view of the complete dependence on doctors, the law must not permit the development of lax or permissive standards.’

In Walsh v Family Planning Services.’ O’Flaherty J formed the view in relation to the determination of whether or not a claim for negligence be deemed successful that it should be a matter to be decided by the trial judge based on general negligence principles. He went on to say:

“Cases of elective surgery, where there is a risk, however exceptional or remote, of grave consequences involving severe pain stretching for an appreciable time into the future and involving the possibility of further operative procedures, the exercise of the duty of care owed by the defendants requires that such possible consequences should be explained in the clearest language to the plaintiff.”

These principles set a strong precedent in relation to the doctrine of informed consent and patient centred approach, they have been adopted and further developed in numerous cases such as Geohegan v Harris and Fitzpatrick v White. In the case of Geohegan Kearns  J held that the practitioner owes a duty to the patient to warn them of any material risk which was a ‘known complication’ of a medical procedure. He further stated:

“Every case must be considered in the light of its own particular facts, evidence and circumstances to see if the reasonable patient in the plaintiffs position would have required a warning of the particular risk.”

These cases indicate that Irish jurisdiction does not adopt the ‘Bolam Test’ and instead addresses cases from the perspective of the ‘reasonable patient.’

The right of a competent patient to refuse treatment is a highly debated topic. Mainly, due to the fact that it brings both respect for autonomy and beneficence into conflict. The right to refuse treatment is Constitutionally protected as it falls within the respect for autonomy which is protected under Article 40.3.1 of the Constitution of Ireland. The right has also been established in numerous high profile Supreme Court decisions such as Re a Ward of Court. Laffoy J held in Fitzpatrick v K that it ‘could not be argued that a competent adult is free to decline medical treatment.’ The right to refuse treatment is also protected under the European Convention on Human Rights. In addition to this, the right of a patient to refuse treatment was given legislative power with the introduction of the Assisted Decision-Making (Capacity) Act 2015 (ADMC Act 2015) which states that a patient has the right to refuse medical treatment on any basis ‘notwithstanding that the refusal appears to be an unwise decision, appears not to be based on sound mental principles, or may result in the patients death.’

The seminal UK case relating to a patients right to refuse treatment is that of Re T (Adult: Refusal of Medical Treatment) in which Lord Donaldson MR said:

“An adult person who…suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered.”

This statement was affirmed in the case of Airedale NHS Trust v Bland.

The right to refuse treatment was accepted by the judiciary in Ireland long before the introduction of the ADMC Act 2015. In Re a Ward of Court, O’Flaherty J held that ‘there is an absolute right in a competent person to refuse medical treatment even if it leads to death.’  

The majority of refusal of treatment cases which find themselves being heard in court in Ireland concern Jehovah’s Witnesses refusing blood transfusions (e.g. JM v The Board of Management of St. Vincent’s Hospital). A leading case on refusal of treatments due to religious grounds is Fitzpatrick and Another v K and Another where Laffoy J affirmed the position from Re a Ward of Court that an adult with the relevant capacity is free to refuse medical treatment if they wish to do so. However, the question for the High Court in this case was whether or not ‘K’ had the capacity to refuse treatment? Laffoy J held the relevant test for capacity to be the three part test set out in Re C (adult: refusal of medical treatment) which states that a patient can refuse treatment if they:

“(i) comprehend and retain the information relevant to the decision in question.

 (ii) believe that information.

 (iii) weigh that information in the balance to arrive at a choice.”

It was held that ‘K’ lacked the capacity to refuse treatment.

Cases involving women refusing medical treatment during pregnancy find themselves before the courts on an increasing basis in recent years. These cases are particularly difficult as the un-enumerated right to bodily integrity which was found in Ryan v Attorney General must be balanced against the right to life of the unborn. Katherine Wade feels that there is an uncertainty as to what level of risk must be posed to the life of the foetus before the State will intervene. In HSE v F Birmingham J stated that a pregnant woman could not be forced to have a caesarean section. However, the woman later consented to the operation and there was therefore no need for the order to be enforced. Cases of these nature are rarely successful as the court will often find that the patient lacks the relevant capacity and as such enforcement orders shall be made.

If a medical practitioner fails to disclose certain information to a patient with regard to a procedure the patient may be liable to seek remedies within the court under a claim in negligence. In Chester v Afshar it was held that a medical practitioner is negligent if they fail to disclose certain risks presented by a procedure to their patient even if the patient would have still consented to the procedure regardless of the risk and as such the claimant ‘ought not to be without a remedy.’

There is evidence, no doubt influenced by Irish Case Law that medical practitioners are moving to the position of providing the patient with the information required by the patient to make an informed choice. There is recognition of patient’s rights and the requirement to disclose risks to the patient.

In 2016, the Irish Medical Counsel issued a Guide to Professional Conducts and Ethics which outlines the general principles of consent and what approach medical practitioners should adopt when trying to obtain it as well as information for patients. Also in 2016, the HSE revised their National Consent Policy which provides guidance for HSE employees in all aspects of the law in relation to the general principles of capacity and consent in relation to both adults and minors alike. In February 2016, the Health Information and Quality Authority (HIQA) released a guidance document entitled ‘Supporting People’s Autonomy’ aimed at ensuring the informed consent process is adhered to and that patient decision-making is guaranteed thus respecting the patients right to autonomy. These guidelines will improve communication and trust between patient’s and practitioners, hopefully improving the standard of patient care.

The Irish courts now approach the question as to how much a patient should be informed about treatments, procedures and advice from a patient-centred standard. The standard relates not to the reasonable patient but the actual patient. Informed consent is now an accepted legal and ethical obligation for doctors, nurses, health care professionals and managers. The practice of medicine is changing and is patient focused with the patient more involved and this improves the quality of healthcare. Professional bodies such as the HSE and HIQA have recently issued guidelines on consent for patients practitioners. There is evidence that the two factors which predict whether a patient will pursue a medical negligence claim are either a poor relationship with their clinician or a patient feeling that they are not being kept informed. Medical professionals view the courts interventions as unwelcome however court decisions have brought about change in the practice of medicine, the courts have endorsed patient right’s and improved patient care. Good medicine is good law.

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