Informed Consent

Collins v Wilcock 1984 - Goff LJ

• The intentional and direct application of force to another person constitutes the tort of battery

Schweizer v Central Hospital (1974)

• Patient consented to operation on the foot but spinal fusion was preformed 

R v Richardson [1999]

• Dentist suspended and not allowed to practise 

• No battery, administrative matter

Appleton v Garrett [1996]

• Dentist preformed wholly unnecessary surgery for financial gain 

• Fraud invalidates consent

R v Flattery (1877)

• Consent to sexual intercorse in the belief that the act was a surgical procedure 

• not valid

R v Tabassum [2000] 

• Patient thought D was medically qualified, touching had no medical purpose 

• Invalidated consent 

Allan v Mount Sinai (1980)

• P told doctor not to touch left arm but doctor injected that arm 

• Invalidated consent

Ashcraft v King (1991)

• P only wanted family blood but was given blood transfusion 

Chatterton v Gerson [1981]

•  signing a form confirming that the effect and nature of the procedure has been explained does not mean a doctor can legally forgo the explanation

• Taylor v Shropshire Health Authority [1998] per Popplewell J: 

• consent forms are “pure window dressing”

Bolam v Friern HMC [1957]

• Duty of taking reasonable care to administer advice so the patient can make a decision to accept or deny treatment

Sidaway v Bethlem Royal Hospital [1985]

the doctor has a duty to take reasonable care when advising the patient

Montgomery v Lanarkshire [2015]

• Provision of information must reach standard of care 

• P had high risk pregnancy due to hight and diabetes, asked about risks during natural birth, doctor didnt inform p about 8-10% chance of shoulder dysticia, Doctor had a view against c-sections 

• P’s child got shoulder dysticia 

• Duty to take reasonable care to ensure P is aware of any material risks ...and of any reasonable alternative or variant treatments;

What is a material risk? (TEST)

• “...a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor was or should reasonably be aware that the particular patient would be likely to attach significance to it.”

Montgomery, Lord Kerr and Lord Reid

Patients are ‘consumers’: ‘the paradigm of the doctor-patient  relationship implicit in previous cases over the past few decades has ceased to reflect the reality and complexity of the way in which healthcare services are provided

The Therapeutic Exception

Deliberately withholding information from the patient

• The doctor reasonably believes disclosure would cause serious detriment to the patient’s health.

• It is a limited exception that must not be abused.

• Provides a defence if successfully argued 

AB v  Leeds Teaching Hospitals 2004

theraputic exception discussed

parents not told about organ removal

Duce v Worcestershire Acute [2018]

• Provides an analytical sequence of steps to take before applying test of materiality

• What did D actually know, or ought to have known?

• If D did not know or ought to know (eg, because guidance was unclear), then the claim fails.

• If D did know of the risk or ought to have known (eg, because clinical guidance recognised it), then apply test of materiality in Montgomery

McCulloch v Forth Valley [2023]

• Reasonable alternative treatments: how do we work out what is “reasonable”?

• We do NOT answer this question by considering what the patient considers reasonable or significant

• We consult professional medical expertise (i.e. expert evidence)

•  Evidence must withstand logical analysis

A v East Kent [2015]

• Minute or theoretical risks (e.g. 0.001%) do not have to be disclosed

Mordel v Royal Berkshire [2019]

• D should be prepared to check with the patient that she understands to ensure a refusal is a informed refusal 

Hassell v Hillingdon [2018]

• This case is an example of the difficulty claimants have in proving their case (e.g. fading powers of recall in court about what was discussed years before

Nicholas v Imperial College [2012]

• Failure to discuss alternatives to doing nothing 

Breach early development: Sidaway [1985]

• Doctor knows best approach, if a body of medical opinion supported doctors opinion not to inform then standard would be met

A Dr is less likely to be liable if: 

• Intelligible dialogue evidenced (Al Hamwi; Cooper; Smith)

• Attentive to P’s perception and probes (Wyatt; Montgomery)

• Answers the P’s questions (Montgomery; Sidaway)

• Recognises that a failure to ask questions means that the P is vulnerable and requires information to be less vulnerable (Montgomery)

• It can be convincingly shown that disclosure seriously detrimental to P’s health (Montgomery)

Smith v Barking [1994]

• Combines objective and subjective

• Would a reasonable person have agreed to treatment knowing the risk (supported by evidence) if done, Onus switches on claimant to displace that 

Jones v North West Strategic 2010]

• Claimant was jehovah witness, C-section wasn't disclosed 

• Court decided cl wouldn't have agreed due to higher risk of blood transfusion

Birch v University College London [2008]

• Judge noted claimant was intelligent and sensible which suggests this is valuable to the court 

FM v Ipswich Hospital [2015]

• Claimants desire to avoid traumatic experience of first birth persuaded courts she would have agreed to c-section 

Chester v Afshar [2005]

Hesitant patient case

• CL not informed of 1-2% risk of aquinas syndrome 

• Couldnt persuade court she never would have undergone procedure but may have undergone it at a later date after a second opinion 

• Court allowed as failure to warn denied her to exercise choice and autonomy 

A type of case confined to its facts, it seems - see Correia sign that chester is not welcome

Shaw v Kovac [2017]

• ‘Lost autonomy’ not a recognised claim