Commentary: The legal positionBMJ 1995; 310 doi: https://doi.org/10.1136/bmj.310.6971.46 (Published 07 January 1995) Cite this as: BMJ 1995;310:46
- Michael A Jones, professor of lawa
- a Faculty of Law, University of Liverpool, Liverpool L69 3BX
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 …