INTRODUCTION
When a doctor or other health care professional has no consent at all to touch someone, it has been seen that an action in battery will lie at the suit of the person touched unless some justifying or excusing circumstances exists. However, English law is reluctant to see the law of battery invoked in the context of medical care[1]. Thus, provided that the person touched knows â??in broad termsâ??[2] the general nature and purpose of the touching, this will be regarded as sufficient to constitute a valid consent, so as to defeat the claim in battery. However, any purported consent must also meet the requirements of the tort of negligence. Negligence is concerned not with the presence or absence of consent, but with the defendantâ??s failure to comply with a legally imposed duty of care. It is immediately apparent that if the patient is entitled to be informed, the doctor is under a duty to provide information[3]. Therefore, we must examine the legal basis of the doctorâ??s duty to inform a patient, so as to obtain valid consent to treatment.
FACTS OF THE CASE
Mrs. C contracted chicken pox in the 12th week of her pregnancy. She consulted Dr. J who later recommended for her to be injected with PV injection in order to avoid any risk of congenital deformity to her unborn child. However, Dr. J did not tell her that there was a 0.1% risk of skin abnormalities inherent in injecting patients with PV. After receiving the injection, Mrs. C develops severe skin abnormalities. She claimed that if Dr. J had warned her of the risk, she would not have undertaken the PV injection. However, Dr. J claimed that the risk of her unborn child becoming congenitally deformed due to the chicken pox is much higher than the risk inherent in PV injection.[4]
ISSUE
Whether the consent given by Mrs. C was valid.
REQUIREMENTS FOR A VALID CONSENT
In order to obtain a legally valid consent, 3 elements must be satisfied:
A) Consent must be real
Bristow J in Chatterton v. Gerson mentioned that â??once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is realâ?¦â?[5] From the saying of Bristow J, we could understand that consent must be informed where a doctor should give the patient sufficient information for him to understand the nature of any proposed treatment. However, there is yet no worldwide standard as to the extent of disclosure of information to the patient. Next, we shall examine how the court in United States of America decides on the issue of disclosure of information.
i) Position in United States of America
Justice Cardozo in Schloendorff v Society of New York Hospital had introduced the doctrine of informed consent whereby His Honour stated that â??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 patientâ??s consent commits an assault for which he is liable in damages.â?[6] Impliedly, the dictum stated that the patient shall have every right to self-determination and he must be informed before treatment is carried out.
Later, the dictum of Justice Cardozo was applied in Salgo whereby this case involved a doctor who failed to warn his patient of the risk of paralysis inherent in the performance of a translumbar aortography, and as a result of the operation the patient suffered severe paralysis of the lower limbs. The patient claimed that the doctor was negligent in failing to warn of the risk of paralysis.[7] The court in Salgo held that full disclosure is necessary to form an informed consent. However, the content of disclosure was a matter of professional medical judgment.
The doctrine of Informed Consent in Salgo was followed for the next 12 years. During this period, in order to determine what a doctor should disclose to his patient in relation to the inherent risks of proposed treatment, the Court accepted that what a reasonable doctor would have done in similar circumstances is determinative. However, while this doctrine was shaping as such, it should be noted that the standard was left to be set out by the doctors consequently denies patientâ??s right to have the available information he might need to make decision for himself.
Later in the case of Canterbury v Spence[8], the Court held that the standard of disclosure was not a matter of medical judgment but it is to be determined by â??prudent patient testâ??. Doctors only need to disclose facts which are â??materialâ??. â??Materialâ?? information is as what a reasonable person in the patientâ??s position would consider significant. However, if the disclosure of material information would impose a psychological harm, doctors are allowed to withhold that information.
It would seem now that the decision in Canterbury reflects a shift in the law towards greater respect for patient autonomy. However, it should be noted that the majority of the jurisdictions in the United States were content with the pre-Canterbury approach, which is, having a Doctrine of Informed Consent regulated by medical experts. Next, we shall look at the position in England with regards to how Doctrine of Informed Consent interpreted by the Court.
ii) Position in England
In England, the Court prefers not to favour the prudent patient test[9]. For example, in the case of Hills v. Potter the Court rejected the Doctrine of Informed Consent in Canterburyâ??s case because if reliance is made on the doctrine, it would cause â??formidable problems and potential liabilities would confront medical men.â?[10] It means if doctrine in Canterbury is applicable, it may lead to a situation of defensive medicine. Doctors would perform unnecessary diagnosis to avoid them from being sued. The same position also applied in Sidaway. Where consent to treatment is legally necessary, a refusal by a competent patient acts as a veto to the prohibited treatment. The facts are as such; the plaintiff in Sidaway underwent an operation but the doctor failed to inform about 1% damage to the spinal cord. The plaintiff argued that the defendant had been negligent for failure to inform her of the risk. The court held that disclosure of information was a matter for the doctorâ??s clinical judgment and thus, the plaintiff failed in the claim.
However, there was a recent development in the law after the coming of Chester v. Afshar. Sir Dennis Henry stated that the purpose of the Doctrine of Informed Consent is to enable patient to exercise her right to choose whether or not to have the operation which she is asked to give her consent. If the doctor failed to inform the patient of the inherent risk which later it materialises, the purpose of Doctrine of Informed Consent is frustrated[11]. Thus, it means that success in claim for negligence may be imminent if it can be proven that there is a failure to inform of the risk of treatment and if the risk was informed, the patient would have opted for other options.
iii) Position in Australia
In the case of F v. R[12], the Court firmly rejected the standard of disclosure based on medical judgment. In this case, a married woman who had no desire to have more children was advised to have a tubal ligation operation. She was told that the operation would ensure that she will not have any more children in the future but she was not told there was a 1% failure rate of the operation being reversible. The operation was performed competently but unfortunately, the procedure given reversed itself and she became pregnant. She brought an action against the doctor for failing to inform her of the 1% risk. The court held that the standard of disclosure is for the Court to decide and not for the medical judgment. This was further agreed by the High Court in Rogers v. Whitaker[13] whereby it was for the Court, having regard to the â??paramount considerationâ?? that a person is entitled to make decisions about his life, to set the appropriate standard of care. Thus, it is clarified that determination of liability with regard to the non-disclosure of risks of proposed treatment is a matter of law and not for medical judgment.
iv) Position in Malaysia
Malaysia follows the common law of negligence and thus, the decision in Sidaway has been very influential in determining the extent of doctorâ??s disclosure of risks in a proposed treatment. In the case of Liew Sin Kong v. Dr Sharon M Paulraj[14], the plaintiff had undergone a treatment for his eyes and after the surgery; he developed severe pain in the right eye. The Court applied Sidaway and held that the defendant was not liable as the plaintiff failed to prove that the defendant had not acted in accordance with the standard of a competent ophthalmologist.
The main problem for patients in Malaysian hospitals is that their consent has rarely been â??informedâ? in nature. They are asked to sign a consent form but rarely do they understand what they are signing. In Tan Ah Kau v. Governement of Malaysia[15], the plaintiff was paralysed after the defendant carried out a surgical operation. The main issue before the Court was whether at the time when the plaintiff signed the consent forms, the plaintiff understood the nature and consequences of the consent. The plaintiff claimed that he had not given real or informed consent to the treatment as no adequate information was given to him to comprehend the nature and consequences of the consent. On this issue, the Court held that no consent was actually given by the plaintiff.
Thus, we may perceive that the position in Malaysia is as the same as in England whereby the standard of disclosure of risks lies with the medical judgment due to the fact that not many cases in such actions of negligence for failure to inform succeeded in their claims. If the court is satisfied that the consent is real, discussion must move on to the second element; capacity to consent.
B) Capacity to consent
The current position in England is that no one can consent to medical treatment on behalf of an incompetent adult. Malaysia is somewhat similar to the position in England with the introduction of Section 77 of the Mental Health Act. Section 77 requires consent to be given by the mental patient himself unless he is incapable of doing so after being assessed by the relevant persons.
C) Consent must be voluntary
The third element to constitute a valid consent is voluntary consent. Consent must be given through the patientâ??s own free will, with no duress or undue influence. For example, in Re T, the patient who was pregnant was admitted to hospital after a road accident. The patientâ??s mother was a devout Jehovah Witness although the patient was not of that faith. After being visited by her mother, she told the doctors not to give her a blood transfusion and asked for alternative treatments. She signed a form refusing a blood transfusion. The Court held the refusal has vitiated because it resulted not from the patientâ??s will, but the will of her mother.[16]
ADVISE
With regard to the current development in the law, Malaysian courts would most likely to follow decision laid down in Chester whereby the standard of disclosure of risks is not totally put unto the shoulders of medical men but it is for the Court to decide. In Chester, we may see that the facts are quite similar with that of Mrs. C. Chester would not have undergone the proposed treatment if Dr. Ashfar had told her about the risk. She had stated that she might have opted for other options. In Mrs. Câ??s case, she also may have opted for other options if the 0.1% risk was disclosed. The decision in Chester is a new development to the previous law founded in Sidaway which in that case, the court upheld the standard of disclosure is determined by medical judgment.
I presume that Mrs. C has fulfilled the second and third element of a valid consent. Thus, her consent was not a real consent because she was not well informed of the risks.
CONCLUSION
The standard of disclosure of risks is still not standardized in most countries. Some country prefers to favour the patients and some doctors. However, as analysis and researches observe, Courts are turning its view and are trying to protect the patients as well as the doctors. In most classic cases, it would not be a problem for doctors to counterclaim against suit of negligence. The court definitely will protect them unless there is a clear cut case of mistake and negligence. It is a good move made by the court as in this day and age doctors must conduct themselves to suit with the developing medical world.
[1] Hills v Potter [1983] 3 All ER 716, 728 per Hirst J; Chatterton v Gerson, per Bristow J; Sidaway v. Bethlem Royal Hospital Governers, per Lord Scarman; Abbas v Kenney (1995) 31 BMLR 157, 163-4 per Gage J.
[2] Per Bristow J in Chatterton v Gerson
[3] When the patient is a child the duty is discharged by advising the childâ??s parents or whoever has parental responsibility for the child: Thomson v James (1997) 41 BMLR 144 (CA)
[4] Question 2c, Tutorial Question, Course Material for Introduction to Medical Law and Ethics.
[5] [1981] 1 All ER 257
[6] 105 N.E. 93 (N.Y. 1914)
[7] Salgo v Leland Stanford Jr University Board of Trustees 317 P. 2d 103 (1960)
[8] 464 F. 2d 772 (D.C.Cir 1972)
[9] Sidaway v Board of Governors of Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 AC 871; Hills v Potter [1984] 1 WLR 653
[10] Hills v Potter [1984] 1 WLR 653
[11] Chester v Afshar : Loosing the Grip on Proving Causation for Lack of Informed Consent, Dr Puteri Nemie Jahn Kassim, [2004] 5 CLJ i
[12] (1983) 33 SASR 189
[13] (1992) 175 CLR 479
[14] [1996] 2 AMR 19
[15] [1997] 2 AMR 1382
[16] [1992] 3 WLR 799
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