Commentary: The legal position

The case presented by John Mitchell raises several important legal issues.1 By far the most important in the context of the law on consent to medical treatment is the role of the medical profession in setting the parameters of consent. In the tort of negligence the Bolam test provides that a doctor who conforms with a practice accepted as proper by a responsible body of professional opinion is not negligent, allowing always for the possibility that there may be more than one responsible body of professional opinion.2 In general terms it is possible to say that it is the profession which effectively sets the standard of competence required by law.

The law on consent to treatment should be distinguished, however, from the law of negligence. Any treatment that entails the physical touching of a competent adult patient without consent constitutes the tort of battery. Consent provides a defence which makes the touching lawful. With consent involving a competent adult the simple question from the lawyer's perspective is, did the patient in fact consent to the procedure? It is important to note that the question is not, did a responsible body of professional opinion consider that consent could be dispensed with? The requirement to obtain consent is imposed by law, not by the practices of the profession. The fact that the treatment may be safe and effective and given with the best interests of the patient in mind is irrelevant to the question of whether in fact the patient consented.

Though in the context of the criminal law it may be true to say that a doctor's genuine belief that a patient was consenting would give the doctor a defence, however unreasonable the doctor's belief might be on objective criteria, it is doubtful whether the same rule applies in the civil law. Moreover, even when applying a subjective test, if the belief were wholly unreasonable this would raise serious doubts whether the doctor could genuinely have held the belief.

In any event, in the case presented by Mitchell, it is questionable whether the fact that the anaesthetist had always assumed that the use of the suppository was covered by the consent for the general anaesthetic would fall under the principle that the doctor genuinely believed that the patient was consenting. This was not a case where there was an apparent consent to procedure A but subsequently it turned out that the patient had not, in fact, consented to A. It was a case where there was consent to procedure A but the doctor performed procedure B as well. There was never any apparent consent to B. The crucial issue was whether procedure B could be regarded as part and parcel of A and therefore was within the actual consent given by the patient to A. This was not a matter on which the doctor's beliefs, however genuine, could be determinative.

It is clearly possible for a patient's consent to be very specific in its ambit. For example, the patient could consent to an injection in her right arm but specifically refuse consent to an injection in her left arm.3 When the patient gives no specific instructions the rule applied in English law is that once the patient is informed in broad terms of the nature of the intended procedure and gives consent the consent is valid.4 Unfortuntely, this leaves considerable room for disagreement about what falls within “the nature of the procedure” and what constitutes information “in broad terms.” Ultimately, this is treated as a question of fact in any given case.

In the case of Davis v Barking, Havering, and Brentwood Health Authority it was held that a patient who had signed a general consent form authorising marsupialisation of a cyst and the use of a general anaesthetic had also consented to having a caudal block.5 When the court looked at what the plaintiff had been told about the proposed operation, including the requirement for a general anaesthetic, it was decided that she had been informed in sufficient detail to have consented to the caudal block. The question of whether a particular aspect of what was proposed called for separate mention, said the judge, was a question of fact and degree. But he considered that the extent of the particularity required must be for the clinical judgment of the doctor and ruled that in the event of a dispute the court would apply the Bolam test.

That aspect of the judgment is controversial, as it is arguable that the degree of particularity required for a valid consent must have at least a minimum fixed content for all patients and should not depend on the possibly widely differing views within the profession. It would seem that the General Medical Council agrees, though in the absence of reasons for the decision this is necessarily speculation, because even when applying the Bolam test it is possible to reject evidence in favour of a particular practice on the ground that it does not constitute a responsible body of professional opinion.

The implications of the GMC's decisions are far reaching, as it will be incumbent on the profession as a whole, not simply anaesthetists, to review the information given to patients before obtaining consent. Patients are entitled to know in broad terms what is going to be done to them, and it will no longer be possible, if ever it was, to rely on a signed consent form as a “consent to anything that may happen to me.” It would be unfortunate if some members of the profession regarded this as a reason to react defensively rather than as an invitation to enter into a genuine dialogue with their patients.