Consent cases

R v Tabassum

Pretended to be gynaecologist, no medical qualifications, guilty of indecent assault

Chatterton

Informing patient in ‘broad terms’ was sufficient

Bolam

Failure to advise of risks and restraints of ECT therapy. Not guilty of negligence if it’s a practice accepted by other medical professionals. Self-determination?

Sidaway

Cervical cord decompression = 1% risk of paralegia which materialised. Diplock + majority applied Bolam. Scarman (dissenting) - reasonably prudent patient test (basic right to be informed of material risk)

Bolitho

Dr late, failed to intubate infant, qualified Bolam - decision must be ‘capable of withstanding logical analysis’

Chester v Afshar

Chronic back pain = 2% risk of cauda equina. ‘In modern law paternalism no longer rules and a patient has a prima facie right to be informed … well established risk of serious injury’. Shift to balance of probabilities. Need to show that the patient would have at least considered the options, not that they would’ve chose differently.

Birch

Patient must be ‘informed of the comparative risks of different procedures.’

Montgomery v Lanarkshire Health Board

Mother was a diabetic = 9-10% risk of shoulder dystocia. No advice and little advice on likelihood of high birth weight. Born w severe disabilities. Dr didn’t inform as she would’ve requested C-Section. Rejected reasonable doctor test, accepted partnership model, should be advised of inherent material risks and alternative treatment options.

FM v Ipswich Hospital

Patient would have chosen C-section if advised. Failure to disclosure risks caused harm.

Lybert

Disclosure after procedure is not valid consent

Al Hamwi

Must take reasonable steps to ensure understanding, not guarantee it

Duce

1) what risks should be known = medical judgment (Bolam); 2) whether to disclose = legal test of materiality (Montgomery)

McCulloch

Courts decide what counts as a ‘reasonable alternative’, not the Dr

JB

‘anyone capable of making decisions has an absolute right to accept or refuse medical treatment’

Re T

‘right of choice is not limited to decisions which others might regard as sensible’. ‘consent need not be in writing and may sometimes be inferred from the patient’s conduct’

C v Kings College

Adult patient’s life ‘lost spark’ and refused life-saving dialysis after suicide attempt. Doctors accepted her wish and loss of purpose, allowed her to die.

K

Hospital tried to sterilise woman w learning disabilities, court held there is less restrictive contraceptive measures. ‘no one, nor any court, can order or require any doctor to take any step’

Aintree Uni v James

‘purpose of the best interest test is to consider matters from the patient’s point of view’. ‘decision-makers must look at his welfare in the widest sense, not just medical but social and psychological’

Winspear

Failure to consult mother violated art8. Confidentiality??

Re Y

Asked to donate bone marrow to sibling but lacked capacity. Held it to be in his best interest to donate it

Tafida Rageeb

Doctors sought declaration to withdraw treatment, parents wanted to take her to Italy for treatment. Court held it will not be burdensome to let child travel to Italy.

SR

7y/o w brain tumour. Parents didn’t want him to have chemo. Doctors said it’s in best interest, applied for declaration, accepted.

Re J

Courts won’t compel a doctor to do something contrary to their medical opinion. Deference to clinical judgement.

Gillick

Doctor can give contraceptive treatment/advice to girl under 16 w/o parental consent if: 1) she will understand the advice; 2) she can’t be persuaded to involve parents; 3) she is likely to have sex w or w/o contraception; 4) her health is likely to suffer w/o advice; 5) her best interest require it

Axon

Child seeking advice on abortion. Should mother be informed? Held child would be deterred from seeking advice. Art 8 claim: ‘a parental right yields to the young person’s right to make his own decisions.’

Re R

Lock and key analogy - patient and parents hold the keys

Re JA

Gillick gave right to consent but not right to refuse

Bell v Tavistock

Can children under 16 who suffer from gender dysphoria consent to puberty blockers? Divisional court gave conditions where they can consent. CofA said this went too far, ‘the court should not be used as a general advice centre’. Up to doctors to decide on capacity,

Re W

Girl w anorexia refused treatment. Treatment can be provided if have any of the following: parent’s consent, child’s consent, court order