Notes of Cases
| Published date | 01 July 1984 |
| Date | 01 July 1984 |
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01661.x |
NOTES
OF
CASES
THE
PATIENT
ON
THE
CLAPHAM OMNIBUS
MEDICAL law used to be
fun.
All you had to do was read lots of
strange American cases, the odd Commonwealth decision, and
maybe some English nineteenth-century cases
on
crime then you
could reflect that none of these was relevant and get
on
with the
fun
of inventing answers. Suddenly, in the last few years, the
courts
have
got into the act. Cases have come rattling along. Medical law is
beginning to get a corpus of law. Medical lawyers are having to do
homework.
This is not an unimportant point. It suggests that the parties
involved in the practice of medicine, not only patients, but doctors,
nurses, parents, pressure groups, social service departments, are
coilcerned to clarify the relationship they have with each other and
their respective rights and duties. The reasons for this pressure for
clarification are too many and complicated to
be
pursued here. They
include the introduction
of
complex technology, a more informed
and better educated population,, more likely, therefore, to ask
questions and expect answers, and a changed attitude among the
products of the welfare state towards the medical profession,
whereby the doctor is expected to see his patients as partners in the
enterprise
of
health care. This last point is also now reflected more
and more in the education
of
doctors and
in
their attitudes, garticu-
larly in the case of general practitioners.
You
may, however, be
forgiven for not noticing this trend,
if
you only listen to those who
claim to speak for the medical profession. It would not be the first
time that trade union leaders lost touch with their members and
continued to defend barricades lorig since abandoned
as
indefensible
(morally or practically) by the rest.
This pressure for clarification concerns
both
medical ethics and
law. As regards the law, it
is
the courts
whish
are
being asked to
provide the answers.
It
is
another agament
for
another glace
whether this is the right
way
d
going
abwt
things. There are lots
of
disadvantages in waiting for a tenacious litigant to appear, then for
a court to decide, and in hoping the
court
will get the right facts
on
which to build a ruling of general appliczticn. The arguments in
favour
of
a more liberal use
of
declaratory judgments seem over-
powering
in
medical law,
so
that a coherent body
of
doctrine can be
developed, and doctors and patients need not find themselves in a
legal vacuum. Perhaps the best way
is
56%
fdow the lead of the
Australian and Canadian
Law
Reform
Cmnmissions or the Presi-
dent's Commission fcrr the Study
of
Ethical
Problems
in
Medicine in
the United States. These bodies have examiffied
both
the ethical and
legal dilemmas posed
by
modern medicine
and
suggested solutions,
454
i
July 19841
NOTES
OF
CASES
455
which, to the extent that proposals are made to change the law,
need further action by the legislature, but otherwise take the form
of recommendations for the profession and the public and suggested
codes of practice or guidelines, which thereafter serve as guides to
what is good law and ethics. In the United Kingdom, apart from the
odd ad hoc Committee, we seem happy to stumble along, such that
doctors, patients, nurses and their advisers often seek in vain for
guidance.
Informed Consent
The nature of the consent a doctor must obtain from his patient
has been a classic area of difficulty for some years, particularly in
the light of the changing nature of medical practice and of the
doctor-patient relationship. In an attempt to take stock, make sense
of the cases and arguments, and offer a way forward, the Canadian
Law Reform Commission published an excellent study paper on law
and ethics in 1980.’ In compliance with its brief, given by Congress,
the President’s Commission published its three-volume report,
Making Health Care Decisions,
in 1982, charting a path for the
future development of law and practice.* This is a brilliant work, not
least because two volumes are dedicated to examining, through
careful research, the various anecdotes about informed consent, and
to comparing the evidence with the myth.
In England, it was left to Mrs. Sidaway to follow the path of
several others3 and
go
to court to clarify her legal p~sition.~ Her
complaint was that she was not given certain information about the
surgery she underwent, and that, had she been given it, she would
not have had the operation. Skinner J. had found as a fact, at first
instance,’ that she would not have had the operation had she known
of
the possible risk of severe disablement. He held, however, that
her doctor’s obligation in law was to give her that information which
a reasonable and responsible member of the medical profession
would think it proper to give. Since the medical evidence was that
a reasonable doctor would not have imparted information about the
risk which materialised, Skinner J. dismissed her claim. In
so
doing,
he
fell
in line and approved previous judgments at first instance,
Bolam
v.
Friern Hospital Management Committee6
and
Chatterton
v.
I
Consent to Medical Care,
Law Reform Commission
of
Canada, 1980.
Making Health Care Decisions,
President’s Commission
for
the Study of Ethical
Problems in Medicine,
U.S.
Govt. Printing Office, 1982. Hereafter, President’s
Commission.
’
For example,
Chatterton
v.
Gerson
[198l]
Q.B.
432,
Hills
v.
Potter
[1983]
3
All E.R.
716,
Sankey
v.
Kensington, Chelsea and Wesfminster A.H.A.
(2 April, 1982, unreported).
‘
Sidaway
v.
Governors
of
the Bethlem Royal Hospital and the Maudsley Hospital and
Orhers, The Times,
February 24,1984.
All
subsequent references are to the Lexis transcript,
and cited as
Sidaway.
Now reported at [1984]
1
All E.R. 1018.
Ibid.
.l,
per
Donaldson M.R.
[1957p1 W.L.R.
582.
456
THE
MODERN
LAW
REVIEW
[Vol.
47
Gerson,’
and his judgment was later followed in
Hills
v.
Potter.”
Mrs. Sidaway appealed. The Court
of
Appeal upheld Skinner
J.’s
decision.
The crucial holding for the medical lawyer is seen as ’being that
the transatlantic doctrine
of
informed consent is not part
of
English
law. Instead, the court opted for the standard
of
the reasonable
member
of
the medical profession. What the particular patient
wanted to know about her treatment, or what a prudent, reasonable
patient may wish to know, is not, they held, the legal standard with
which to measure the doctor’s duty. This decision, it is submitted,
is
insupportable both in principle and on its own reasoning.
Consent in Medical Ethics
Before examining the judgments in the Court
of
Appeal, it is as
well to recall briefly the significance and purpose
of
consent.in the
context
of
medical care. It is,
of
course, not a legal, but an ethical
doctrine. It flows from the Kantian imperative
of
respect for others,
respect for each person as a person in his own right.’ One
of
the
crucial consequences is that we should respect each person’s auton-
omy, his power to reach his own decisions and to act on them.
Consent is one aspect of respect for autonomy. In the context
of
medical ethics, it means that a doctor may not touch or treat another
without his consent, always assdming that other is competent
to
make an autonomous decision. The unconscious person is, by
definition, incompetent. The immature, the mentally ill person, the
overwrought or the over-anxious may well be. In such a case any
purported consent would be invalid and ethically may not be relied
upon, but rather may be ignored, just as refusal
of
consent may be
overridden. This is ethically justifiable because, in fwt, it is not
autonomy-reducing but autonomy-enhancing, in that the incom-
petent person is prevented from doing that which deleteriously
affects his ability subsequently to come
to
an enjoyment
of
autonomy
free from avoidable harm. On this reasoning, to take a six-year-old
to the dentist, against his kicks and screams, is autonomy-enhancing
and justified paternalism, in that it means he will come
to
maturity
able to chew his food. Thereafter he has the choice whether to
neglect his teeth.
Clearly, then, the commitment to autonomy represented by the
requirement
of
consent is respected by having a notion
of
incom-
petence, but it can also be undermined by it, unless the criteria
of
incompetence are articulated as clearly as possible, and the inquiry
as to their presence is conducted with total integrity. The doctor,
therefore, ought ethically to begin with an assumption
of
com-
--
Op.
cit.
note
3.
Op.
cit.
note
3.
Good medical ethics would not distinguish between
a
paying and a non-paying patient,
but see Donaldson
M.R.,
“At the same time the patient received a letter from
Mr.
Falconer
asking her how she was getting on. Bearing in mind that the plaintiff was not a private
patient,
it
is a great tribute to
Mr.
Falconer’s compassion and interest that he wrote as he
did,”
Siduwny,
p.1.
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