Right to give consent

Contributed by Susan Brooks and current to 1 September 2005

Before undergoing any treatment a patient must give their consent to the procedure. In the absence of such consent, then under the law the practitioner may have interfered with the patient’s bodily integrity and the treatment may be considered both a civil battery and a criminal assault. If the patient suffers an injury then they may also have a case in negligence (see further below under ‘MEDICAL NEGLIGENCE’).

Assault and/or battery are included in the tort of trespass, which protects a person’s right not to be touched without consent or other lawful authority. Action can be taken in trespass even if the practitioner is not at fault and there is no injury to the patient.

In order for you to give a valid consent you must:

• broadly understand the nature of the treatment;
• give your consent voluntarily; and
• have sufficient capacity to give consent.

UNDERSTANDING THE NATURE OF THE TREATMENT

The practitioner is required to give the patient all the information he or she needs to be able to consent to a procedure. Everything that might influence this decision should be included. The practitioner should explain fully:

• the nature of the illness and the implication of any tests that have been undertaken;
• any uncertainty in the diagnosis: the patient should also be given the opportunity to seek a second opinion;
• what is to be done and why;
• the relative advantages and disadvantages of the proposed treatment and any alternative treatment that may be available;
• predictions of length of time and costs;
• any possible side-effects of the treatment both in the recovery phase and the longer term.

In short, your practitioner is required to tell you everything he or she knows about the treatment that may influence your decision to consent to the procedure.

Trespass or Negligence

To make a claim in trespass you do not have to have sustained an injury. To make a claim in negligence you must have suffered an injury.

Trespass actions may only be brought where the patient is not informed in ‘broad terms of the nature of the procedure which is intended’: Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479. For example, if you consulted your doctor seeking contraceptive advice, your doctor suggested a tubal ligation and you consented to that procedure, but the surgeon also removed your appendix, then you would have a case in trespass.

However, if you consented to a tubal ligation, but were not told that there was a remote possibility that the tubes could realign and that you might become pregnant, then you will not have a case in trespass. You may however have a case in negligence because your doctor may have breached the duty to give you sufficient information including any ‘material risks’ of the procedure (see further below under ‘MEDICAL NEGLIGENCE’).

Rogers v Whittaker

The Plaintiff, Ms Whittaker, was blinded in her right eye when she was 9 years old. When she was 47, a surgeon, Mr Rogers, operated on the eye, hoping that some sight would be restored but mainly to make it look better. Ms Whittaker was anxious that the sight in her left eye would not be affected, so she asked a lot of questions of the surgeon. He knew of a small risk of damage occurring in the good eye but neglected to tell her. She suffered damage to the good eye as a result of the surgery and successfully sued the surgeon in negligence, saying that had she known of the risk she would not have had the procedure. The High Court determined that an action in trespass was not available because the surgeon had informed her ‘in broad terms of the nature of the procedure’. He had however not disclosed all the ‘material risks’ involved in the procedure and had therefore been negligent, despite diverse medical opinion from other surgeons who said that they would not have disclosed that particular risk because it was so slight. The High Court upheld the trial judge’s decision that it was up to the court, based on all the evidence, to determine the standard of reasonable care. This was important, because prior to this case a court had to accept any medical opinion that concurred with a practitioner, even if it was not considered usual practice.

VOLUNTARY CONSENT

Consent must be given freely. A consent that is induced by duress, fraud or deceit, or given when a patient is under the effect of drugs, is not freely given. Your practitioner should be willing to continue to help you even if you have concerns about the proposed treatment.

Consent may be oral, written or implied. A consent form is just one piece of relevant information. It does not prove that you were given all the facts (unless the form contains all the facts) or that you did not withdraw your consent after signing the form.

CAPACITY OR INCOMPETENCE

An essential element of a valid consent is the capacity of a person to understand what they are consenting to, and the possible consequences of that consent. Issues of incompetence arise where the patient is a child, or an adult who is incompetent because of an intellectual disability or a mental illness.

Children

The parents of a baby or young child are legally entitled to decide what medical treatment their child will or will not have, provided that they act in the child’s best interests. Under the Family Law Act this right is based on parental responsibility for the child until the child is 18 years.

The concept of best interests has been widely interpreted: Re GWW (husband) and CMW (wife) (1997) 21 Fam LR 612.

A medical practitioner may perform a blood transfusion upon a child without the consent of the parent if the parent fails to give consent or cannot be found. However, the doctor must initially get a second opinion confirming the child’s condition and the necessity for the transfusion.

Medicare recognises the capacity of children below 18 years to consent to medical procedures independently of their parents: young people over 15 can obtain their own Medicare card.

Also, the High Court in “Marion’s Case” in 1992 recognised the ‘mature minor’s test’, which says that older children have a right to consent to most types of treatment. Provided the child is sufficiently mature to understand the proposed procedure, his or her consent will generally be sufficient legal authority for the doctor to undertake the procedure: Gillick v West Norfolk AHA [1985] UKHL 7; [1986] AC 112 (HL).

In serious cases a doctor should encourage the young person to gain the consent of his or her parents.

Marion’s Case

This case concerned a 13 year old girl with an intellectual disability who had reached puberty. She was considered to be incapable of physically caring for herself and did not understand the nature or implications of sexuality, pregnancy or motherhood. Her parents thought that it would be in her best interests for her to have a hysterectomy and her ovaries removed. Marion was unable to understand the implication of the operation. The High Court refused to allow her parents to authorise a sterilisation procedure without a court order. It considered that sterilization involved a very ‘serious invasion of physical integrity with the grave impairment of human dignity’ and that a general rule allowing guardians to consent to all kinds of medical treatment might be used to justify extreme procedures such as a clitoridectomy or the removal of a healthy organ; a court order will be needed: Department of Health and Community Services (NT) v JWB [1992] HCA 15; (1992) 175 CLR 218.

Adult patients who are not competent (see also GUARDIANSHIP AND ADMINISTRATION).

A person with an intellectual disability or suffering a mental illness, or one affected by drugs or alcohol, may be incapable of giving consent.

Relatives and carers (substitute decision-makers) may consent in certain circumstances. The power to make a substituted decision may be:

• A common law power, such as that of a parent of a minor; or
• A statutory power, such as that which arises under the Guardianship and Administration Act 1990 (WA) (ss.43-45 and s.51).

The Guardianship and Administration Act sets out a list of people who can consent to treatment of a person who is incapable of consenting to urgent or non-urgent treatment: (s.119). They are listed in priority, so that for instance if the person already has a guardian appointed then the guardian must consent. If not, then the spouse may consent (and so on):

• Guardian;
• Spouse of the person needing the treatment;
• Unpaid carer of the person needing the treatment;
• Nearest relative with a close relationship to the person needing the treatment;
• Person with a close relationship to the person needing the treatment.

However, under s.(1a) a practitioner may provide urgent treatment with out consent if in the opinion of the practitioner it is not practicable to obtain that consent.

Under Division 3 of the Guardianship Act, sterilisation cannot be carried out without consent of the State Administrative Tribunal as well as the consent of the appropriate person listed above.

WHERE CONSENT IS NOT REQUIRED

Consent to medical treatment is not required where:

• an emergency arises and there is an imminent risk of death or serious injury. A doctor may do whatever is necessary to avert that risk without seeking consent from anyone (see ‘THE GOOD SAMARITAN’ below);
• treatment is authorised by statute (for example, treatment of infectious diseases); or
• treatment is authorised under a court order.

REFUSAL TO CONSENT

There is very little a hospital or doctor can do if a fully capable person refuses treatment. Practitioners may counsel a patient to find out why the person refuses to consent and to deal with the reasons.