informed consent

lectures 1-5

what 2 types of claims are there for informed consent with supporting cases?

1. trespass - battery → intentional and direct physical contact with P without consent (Collins v Wilcock [1984])

2. negligent failure to warn → failure to warn P about risks that could materialise or alternative treatments (Chatterton v Gerson [1981])

what is the standard of proof?

on the balance of probabilities

what remedies could be available to the P?

• compensation/damages for the harm suffered

what are the 3 aspects of consent for the acceptance and rejection of treatments?

1. mental capacity → P must be able to make decision and can be impaired by e.g. psychiatric conditions

2. informed → information given to P by D must reach standard

3. voluntary → must be no external force, e.g. coercion, acting on P

what case looks at informed consent in relation to (1) mental capacity?

Kings College Hospital NHS Trust [2015]

• capacitous adult has sovereignty over own body and mind including right to refuse treatment

what case looks at the (2) informed element of consent in relation to the test of real consent?

Chatterton v Gerson [1981]

• once P is broadly informed of nature of procedure and consents, consent is real

what case looks at the (3) voluntary element of consent in relation to self-determination?

Secretary of State for Home Department v Robb [1995]Fam 127

• principle of self-determination requires respect to be given to P’s wishes

what case looks at the extent of liability of D in relation to battery?

Wilson v Pringle [1987]

• D is liable for all direct consequences even if unforeseeable and D intended to touch but not injure as D voluntarily made contact

what is a defence to battery and what case supports this?

St George’s Healthcare NHS Trust v S [1999]

• valid consent to medical treatment is defence to battery

what case looks at mistaken belief that P consents in relation to battery?

Schweizer v Central Hospital (1974)

• D is liable if consent for procedure is based on wrong information and D carried out procedure