I cannot agree with 'The obligations of the doctor is to assess the patient and put themselves in the shoes of the patient when providing that information' in your piece (25 March, this series of rapid responses), as the ‘deeper meaning’ of this ruling. Doctor's will in practice try to do that - but if they fail, that failure is now judged 'from the perspective of patients'.
I would point at these sections:
45. Lord Scarman pointed out that the decision whether to consent to the treatment proposed did not depend solely on medical considerations:
“The doctor's concern is with health and the relief of pain. These are the medical objectives. But a patient may well have in mind circumstances, objectives, and values which he may reasonably not make known to the doctor but which may lead him to a different decision from that suggested by a purely medical opinion.” (pp 885-886)
46. This is an important point. The relative importance attached by patients to quality as against length of life, or to physical appearance or bodily integrity as against the relief of pain, will vary from one patient to another. Countless other examples could be given of the ways in which the views or circumstances of an individual patient may affect their attitude towards a proposed form of treatment and the reasonable alternatives. The doctor cannot form an objective, “medical” view of these matters, and is therefore not in a position to take the “right” decision as a matter of clinical judgment.
And also at this from section 87:
' An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.'
And to Lady Hale's section 108:
108. It is now well recognised that the interest which the law of negligence protects is a person’s interest in their own physical and psychiatric integrity, an important feature of which is their autonomy, their freedom to decide what shall and shall not be done with their body (the unwanted pregnancy cases are an example: see Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309). Thus, as Jonathan Herring puts it in Medical Law and Ethics (2012), 4th ed, p 170), “the issue is not whether enough information was given to ensure consent to the procedure, but whether there was enough information given so that the doctor was not acting negligently and giving due protection to the patient’s right of autonomy”.
I recognise the difficult position that medics are placed in, if the law supports the idea that it is for the patient’s peer group to consider whether consent was properly obtained – but that is the correct reflection of the separation between consent and competence in applying a treatment, however difficult it is to come to terms with.
In section 93:
'It is nevertheless necessary to impose legal obligations, so that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires. This may not be welcomed by some healthcare providers; but the reasoning of the House of Lords in Donoghue v Stevenson [1932] AC 562 was no doubt received in a similar way by the manufacturers of bottled drinks. '
Rapid Response:
Re: Update on the UK law on consent
Dear Mr Shyan Goh,
I cannot agree with 'The obligations of the doctor is to assess the patient and put themselves in the shoes of the patient when providing that information' in your piece (25 March, this series of rapid responses), as the ‘deeper meaning’ of this ruling. Doctor's will in practice try to do that - but if they fail, that failure is now judged 'from the perspective of patients'.
I would point at these sections:
45. Lord Scarman pointed out that the decision whether to consent to the treatment proposed did not depend solely on medical considerations:
“The doctor's concern is with health and the relief of pain. These are the medical objectives. But a patient may well have in mind circumstances, objectives, and values which he may reasonably not make known to the doctor but which may lead him to a different decision from that suggested by a purely medical opinion.” (pp 885-886)
46. This is an important point. The relative importance attached by patients to quality as against length of life, or to physical appearance or bodily integrity as against the relief of pain, will vary from one patient to another. Countless other examples could be given of the ways in which the views or circumstances of an individual patient may affect their attitude towards a proposed form of treatment and the reasonable alternatives. The doctor cannot form an objective, “medical” view of these matters, and is therefore not in a position to take the “right” decision as a matter of clinical judgment.
And also at this from section 87:
' An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.'
And to Lady Hale's section 108:
108. It is now well recognised that the interest which the law of negligence protects is a person’s interest in their own physical and psychiatric integrity, an important feature of which is their autonomy, their freedom to decide what shall and shall not be done with their body (the unwanted pregnancy cases are an example: see Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309). Thus, as Jonathan Herring puts it in Medical Law and Ethics (2012), 4th ed, p 170), “the issue is not whether enough information was given to ensure consent to the procedure, but whether there was enough information given so that the doctor was not acting negligently and giving due protection to the patient’s right of autonomy”.
I recognise the difficult position that medics are placed in, if the law supports the idea that it is for the patient’s peer group to consider whether consent was properly obtained – but that is the correct reflection of the separation between consent and competence in applying a treatment, however difficult it is to come to terms with.
In section 93:
'It is nevertheless necessary to impose legal obligations, so that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires. This may not be welcomed by some healthcare providers; but the reasoning of the House of Lords in Donoghue v Stevenson [1932] AC 562 was no doubt received in a similar way by the manufacturers of bottled drinks. '
Competing interests: No competing interests