Autonomy & Consent

Question 1

Airedale Trust v Bland [1993]

Answer 1

Capacious patient’s decision regarding consent or refusal of treatment must be obeyed.

NOT murder to withdraw life-sustaining treatment but hospital should seek court approach.

Facts:
* Bland was left in vegetative state after Hillsborough disaster.
* Issue -> could family withdraw treatment and allow him to die naturally as he would not want to be kept alive.
* Coroner said this was murder.
HL: Lawful to withdraw life-saving treatment (not just basic care) as not in best interests to be kept alive.

Question 2

What makes an autonomous decision/valid consent?

Answer 2

1. Capacious (understands what is wrong and can communicate this)
2. Voluntary (patient is acting freely without compulsion or coercion)
3. Informed (patient has been given necessary information to appreciate what is involved.

Question 3

Treatment without consent?

Answer 3

Treating an ADULT patient who has capacity without their consent may lead to civil and/or criminal liability.

Question 4

Treatment without consent: Criminal Law

Answer 4

• Non-consensual touching/contact = an assault/battery
• Treatment that causes harm = ABH, wounding or GBH e.g., Ian Paterson.

Question 5

Treatment without consent: Civil Law

Answer 5

Treatment with no valid consent may be trespass against the person or battery.
-> Re B (adult: refusal or medical treatment) [2002]: held battery as no consent.
Insufficient information in consent may lead to negligence if the patient suffers harm.

Question 6

Ian Brady, Robb (prisoners): consent

Answer 6

Rights are not diminished due to status as a prisoner

Question 7

Re T (adult refusal of medical treatment) [1992]

Answer 7

Religion is a ground for refusal - “doctors who treat a Jehovah’s witness do so at their peril”

Question 8

Manchester NHS Trust v DE [2019]

Answer 8

If evidence of coercion and impaired understanding then may be lawful to treat someone without consent.

Question 9

Re MB (pregnant women) (1997)

Answer 9

Even if woman’s refusal of treatment leads to death of foetus, if she has capacity she can refuse treatment for whatever reason e.g. caesarean section refusal)

Question 10

NHS Trust v JP [2019]

Answer 10

Woman had learning disability. Caesarean was considered in her best interests and JP did not understand that vaginal delivery would cause significant stress.
Court ruled it would be lawful to deceive P in order to ensure her compliance with procedure.

Question 11

Mental health conditions and consent

Answer 11

MHA 1983 provides framework
s63 allows for detained patients to be subject to certain treatment without consent.
Case by case business.

Question 12

Public Health (Control of Disease) Act 1984

Answer 12

Provides for compulsory medical examination, removal to hospital or detention in hospital of a person suffering from or carrying a notifiable disease -> put into quarantine.
There is no compulsory treatment.
Justification = prevent dangerous diseases spreading.

Question 13

Safeguarding vulnerable adults from coercion?
A Local Authority v A [2010]

Answer 13

Inherent Jurisdiction of High Court -> enables the court to protect those who have capacity but whose interests are threatened due to the coercive behaviour of others.
Used for first time in medical context in A Local Authority v A [2010]

Question 14

Article 3 Human Rights Law

Answer 14

Inhumane / degrading treatment

Question 15

Article 8

Answer 15

Respect for privacy and family life
(interpreted to include a right to determine certain matters relating to medical treatment and a person’s autonomy to make choices about their life.

Question 16

Junhke v Turkey (2009)

Answer 16

Alleged forcible gynaecological examination of a woman suspected of terrorism.
Invasive strip searches can be done without consent as they are a therapeutically necessary.

Question 17

Capacity assesment?

Answer 17

Re C [1994]:
1. Start with assumption of capacity - onus on those seeking to deny capacity to rebut.
2. If there is a reason to think person may be unable to make a decision due to an impairment - s3 MCA 2005 provides a functions approach to assessing capacity.

Question 18

S3 MCA 2005: mental capacity assessment

Answer 18

A person is unable to make a decision for themselves if unable to:
1. Understand relevant information
2. Retain that information
3. Use or weigh that information
4. Communicate his decision

Question 19

S4 MCA 2005: Best interests assessment

Answer 19

Provides a checklist of factors to be used to assist courts in determining whether treatment is in a person’s best interests.
Must consider:
1. Persons past and present wishes and feelings
2. Beliefs and values that would likely influence his decision
3. Other factors the patient would consider if he were able to do so
4. Anyone named by the person
5. Anyone engaged in the care of the person or interested in their welfare
6. Any donee of a lasting power of attorney
7. Any deputy appointed by the court

Question 20

W v M and others [2011]

Answer 20

Despite evidence M would not want to be kept alive, as her life was not wholly negative judge would not order a discontinuation of treatment as sanctity of life.

Question 21

Aintree v James [2013]

Answer 21

• James in minimally conscious state, approaching end of life. The hospital wanted to withhold certain treatment → wife claimed he was enjoying life and would want to be treated.
• James died during litigation. Went to CoP. CoA held would not have been appropriate to provide some treatment.
• SC held that the question of what constitutes worthwhile treatment is not entirely clinical or objective → patient’s subjective wishes must be treated as important.

Question 22

NHS Trust v Y [2018]

Answer 22

SC held that prior judicial approval for withdrawing treatment is not required unless there is a dispute as to best interests between hospital and family.

Question 23

Advance Decision Making (s23-25 MCA)

Answer 23

Adults with capacity can make an advance decision specifying that at a future time if they lack capacity, a treatment should or should not be continued.

Advance refusals should be respected but advance requests are subject to clinical discretion (Burke v The General Medical Council [2005])

Question 24

Burke v The GMC [2005]

Answer 24

Patients cannot demand treatment that is deemed by doctors that is clinically inappropriate .

Question 25

S25 MCA (advance refusal)

Answer 25

Advance refusals must:
1. Specify which treatments are to be refused
2. Be in writing
3. Be signed by the patient or by another with patients authority
4. Be witnessed

If subsequently says something that is not consistent with AD , the AD will be deemed invalid e.g., Local Authority v E [2012]

Question 26

Lasting Power of Attorney

Answer 26

A person with capacity can appoint another to act as a proxy decision maker called a donee of lasting power of attorney.

A person over the age of 18 can make an LPA by complying with the formalities specified in MCA s10 and schedule 1 of the Act.

Question 27

The UN Convention on the Rights of Persons with Disabilities (UNCRPD)

Answer 27

Intended to give people with disability greater rights and avoid discrimination where possible.
The UNCRPD calls for the abolition of any laws that lead to the removal of legal capacity of a person, on grounds of their disability (physical or mental).
Art 12: supported decision-making
* Such safeguards shall ensure that measures relating to the exercise of legal capacity reflect the rights, will, and preferences of the person.
* Must be proportional and tailored to the person’s circumstances, apply for the shortest time possible and must be subject to regular review by a competent, independent and impartial authority or judicial body.

Question 28

Chatterton v Gerson [1981]

Answer 28

Held: Once patient is informed in broad terms of the nature of the procedure which is intended and gives consent, that consent is real.
BUT may still be grounds for negligence claim if inadequate information to weight up risks, benefits and alternatives.

Question 29

Negligence claim

Answer 29

1. Duty of Care
2. Breach of Duty
3. Causation

Question 30

Bolam (OLD APPROACH)

Answer 30

Professional medical standard
What would the reasonable doctor include in the consent information? ‘A practice accepted as proper by a responsible body of medical opinion’

Question 31

Sidaway v Bethlem [1985]

Answer 31

Lord Bridge acknowledged that a failure to disclose information might sometimes attract liability even if non-disclosure was supported by a responsible body of medical opinion → however this claim failed and stuck with old approach (Bolam)

Sense that patient had a stronger right to know important information began to emerge.

Question 32

Montgomery v Lanarkshire [2015]

Answer 32

Prudent Patient Test: Patient should be told “information which any reasonable patient would wish to know before giving consent”

Doctor under duty to take reasonable care to ensure patient is aware of any material risks involved in any recommended treatment AND of any reasonable alternative.

Test for materiality: whether a reasonable person in the patient’s position would attach significance to the risk.

Question 33

What if patient does not want to know?

Answer 33

• If patient does not want to know, doctors under no obligation to tell them
• Patients who refuse information should be advised that information can be provided at any time – note to be made on medical records that patient has refused information.

Question 34

McCulloch v Forth Valley Health Board [2023]

Answer 34

Issue: what test should be applied when deciding whether an alternative treatment is reasonable and should be discussed with patient.
Held: Correct test is ‘professional practice test’ set out in Bolam.
It would be unwarranted extension of the principle set out in Montgomery to demand all alternative treatments.

Question 35

Causation

Answer 35

Patients must show on balance that had they received the information concerning risks/side-effects, they would not have sustained damage → usually demonstrated when claimant shows that she would have refused the treatment proposed.

Question 36

Chester v Afshar [2004]

Answer 36

Patient claimed that if she had been told about all risks she would not have gone through treatment on same day (BUT she may have had treatment another day)
Held: She did not give informed consent. This is controversial as key different is day.