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Patient autonomy and consent to treatment: the role of the law?*

  • Margaret Brazier (a1)


Until recently claims for damages by patients against their doctors were rare in England. Patients who did pursue such claims often found scant sympathy from Her Majesty's judges. The clinical judgment of the medical practitioner was accorded something very like immunity from suit. Since 1980 the pace of medical litigation has quickened dramatically. Patients seem less and less willing to accept without complaint the results of unsuccessful or injurious treatment. They are more and more inclined to question their doctor's judgment. Medical litigation and scrutiny of medical decision making is highly newsworthy in 1987. The practice of medical litigation looks set to become profitable for lawyers. To the cynical oberver all this might look like good news for lawyers and bad news for doctors.



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While it has been possible for some amendments to be made to this article in the light of the Court of Appeal's judgment in Gold v Haringey AMA (see (1987) Times, 15 April, CA), it should he noted that the article was written before judgment on appeal was given in this case.



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1. For vivid illustration of judicial deference to medical judgment from a judge not noted for deference to anyone or any institution, see the judgments of Lord Denning in Hatcher v Black (1954) Times, July 2 and Whitehouse v Jordan [1980] 2 All ER 650, CA.

2. The action for negligence is a far from ideal vehicle for investigating a complaint or discovering what went wrong in treatment. But in the absence of complaints procedures in the private sector, and in the light of inadequacies in NHS complaints procedures, a negligence claim may be seen as the patient's only means of venting his grievance; sec Kralj v McGrath [1986] 1 All ER 54 and note the comments of Mrs McGrath after the judgment in The Times, 28 June 1985; and see Lee v South West Thames RHA [1985] 2 All ER 385. The General, Medical Council has expressed concern about public dissatisfaction with complaints procedures and has recently initiated a review of its own procedures with especial references to problems and grievances in the private sector.

3. Chatterton v Gerson [1981] QB 432; Hills v Potter [1984] I WLR 641; Potts v North West RHA (judgment in trespass) reported only as a news item The Guardian 23 July 1983; Blyth v Bloomsbury AHA (1985) Times 24 May and (1987) Times 11 February, CA; Gold v Haringey AHA (1986) Times, 17 June and (1987) 15 April, CA. ‘Informed consent’ was also in issue in Thake v Maurice [1986] 1 All ER 497 and Eyre v Measday [1986] 1 All ER 488.

4. [1985] 1 All ER 634.

5. Gold v Harringey AHA (1986) Times 17 June. But see the judgment of the Court of Appeal (1987) Times, 15 April.

6. Lord Edmund-Davies in Whitehouse v Jordan castigated as unacceptable any ‘defence’ of error of clinical judgment. He put it thus: ‘To say that a surgeon committed an error or clinical judgment is wholly ambiguous for, while some such errors may he completely consistent with the due exercise of professional skill, other acts or omissions in the course of exercising ‘clinical judgment’ may he so glaringly below proper standards as to make a finding of negligence inevitable’ [1981] 1 All ER 267 at p 276, HL.

7. For a forceful account of lack of accountability in a campaigning work for greater patient participation in decision-making see Faulder, Carolyn, Whose Body Is It - The Troubling Issue of Informed Consent (Virago. 1985).

8. In particular the contingency-fee system for funding personal injuries actions, and the ‘fee-for-service form’ of medical care; see Ian Kennedy's note on the Court of Appeal judgment in Sidaway (1984) 47 MLR 454; and see Harvey Teff ‘Consent to Medical Procedures, Paternalism, Self-Determination or Therapeutic Alliance’ (1985) 101 LQR 432 at pp 433–436.

9. See Making Health Care Decisions (President's Commission for the Study of Ethical Problems in Medicine. US Govt Printing Ofice 1982), p 21 at note 22. Survey in 1975–76 revealed that only 3 of cases concerned ‘informed consent’.

10. See Making Health Care Decisions. President's Commission (op cit) at p 153ff where the danger of legal rules leading to a proliferation of pro forma and meaningless consent forms is fully discussed.

11. See A. Meisel ‘The Expansion of Liability for Medical Accidents: From Negligence to Strict Liability by Way of Informed Consent’ (1977) 56 Nebraska Law Review 51; and see G. Robertson ‘Informed Consent to Medical Treatment’ (1981) 97 LQR 102 at pp 109–112.

12. See ‘Failure of Medical Advice: Trespass or Negligence’ above at p 149.

13. See the model for ‘informed consent’ formulated by A. Meisel, L. H. Roth and C. W. Lidz Towards a model of the legal doctrine of informed consent’ (1977) Vol 134 Am, J Psychiatry at p 285 ‘… when information is disclosed by a physician to a competent person that person will understand the information and voluntarily make a decision to accept or refuse the recommended medical procedure.’ The model is examined and further discussed by Meisel and Roth in ‘What We Do and Do Not Know About Informed Consent’ (1981) Vol 246 Journal of the American Medical Association at p 2473.

14. The classic and basic statement of patient autonomy remains that of Cardozo J. in Schloendorff v Society of New York Hospital (1914) 211 NY 125 ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body: and a surgeon who performs an operation without his consent commits an assault…’ See the commentary on Schloendorff in Making Health Care Decisions President's Commission op cit at pp 20–21.

15. See Dixon, J. L. and Smalley, M. G. Jehovah's Witnesses - the Surgical/Ethical Challenge’ (1981) Vol 246 Journal of the American Medical Association at p 2471.

16. For strongly worded criticism of any ‘outside’ interference with medical judgment on how much to tell patients see ‘What should the doctor tell?’ (1984) 289 BMJ 235. For a wider perspective on the debate within the medical profession see G. R. Dunstan and M. J. Seller (eds); Consent in Medicine: convergence and divergence in tradition, King Edward's Hospital Fund of London (OUP, 1983) and J. F. Childress, Who Should Decide? Paternalism in Health Care (OUP, 1982).

17. The classic example is not disclosing to a patient that he has cancer or some chronic and degenerative disease. It remains untested whether in English law a patient who agreed to surgery on the basis of a misleading diagnosis is told that he has a stomach ulcer and not that the diagnosis is certainly or very nearly certainly cancer has any claim against the surgeon. He may well be aware of the ‘broad general nature of the procedure’ and even of the risks attendant on surgery. For pertinent criticism on ethical and medical grounds of doctors' unwillingness to communicate unfavourable diagnosis see Institute of Medical Ethics Bulletin No 13 (1985) reviewing several articles from nursing journals.

18. See Carson Strong, ‘Informed consent: theory and policy’ (1979) 5 Journal of Medical Ethics at p 196: M. D. Kirby ‘Informed consent: what does it mean?’ (1983) 9 Journal of Medical Ethics at p 69.

19. Making Health Cure Decisions (op cit).

20. Consent to Medical Cure Law Reform Commission of Canada 1980.

21. See Making Health Cure Decisions (op cit) at p 153, and the literature referred to in note 5 in particular H. K. Beecher ‘Consent to Clinical Experimentation - Myth and Reality’ (1966) Vol 195 Journal of the American Medical Association at p 39.

22. See the empirical surveys commissioned by the President's Commission and reported in Making Health Cure Decisions. And see the seminal studies by Alfidi: R. J. Alfidi ‘Informed consent: a study of patient reactions’ (1971) Vol 216 Journal of the American Medical Association at p 1325, and Alfidi ‘Controversy, alternatives and decisions in complying with the legal doctrine of informed consent’ (1975) Vol 114 Radiology at p231. The statistical evidence and some apparent contradictions in Alfidi's work are reviewed by Meisel and Roth in ‘What We Do and Do Not Know about Informed Consent’ (op cit).

23. See ‘What Are My Chances Doctor?’: A Review of Clinical Risks (Office of Health Economics, 1986) for a full review of the US material in the context of health care practice in Britain.

24. See Making Health Care Decisions (op cit) at pp 7–8 and 101–102. The Commission indeed found more evidence to the effect that lack of information increases the likelihood of treatment refusal.

25. For criticisms of the methodological shortcomings of some of these surveys see Making Health Care Decisions (op cit) at p 90.

26. See ‘What Are My Chances Doctor?’ (op cit) at p 39. As that report puts it ‘Maximising health-expectancy is not necessarily synonymous with maximising life-expectancy’.

27. See Truman v Thomas (1980) 165 Cal Repr 308; 27 Cal (3d) 285, 611; P (2d) 902 and see G. B. Weiss, ‘Paternalism Modernised’ (1985) Vol 11 Journal of Medical Ethics 184.

28. The dangers of a proliferation of meaningless forms at the expense of genuine communication is addressed throughout the President's Commission Report Making Health Cure Decisions (op cit).

29. See in particular H. Teff ‘Consent to Medical Procedures. Paternalism Self-Determination or Therapeutic Alliance’ (1985) 101 LQR 432 and What Are My Chances Doctor? (op cit).

30. As Teff does (op cit) at p 433.

31. Nearly a third of the President's Commission report on Making Health Care Decisions addressed itself to the criteria determining competence and how individual autonomy can be enhanced either by provision for advance directives by the competent and how they are to be treated if they later become incompetent or to provide for family participation in decision-making via proxy directives.

32. See Meisel and Roth ‘What We Do and Do Not Know about Informed Consent’ (op cit.).

33. See chapter 6, ‘Professional Behavior’, Making Health Care Decisions, reviewing medical education as it affects medical ethics and learning how to communicate with patients and non-medical health care staff.

34. See R. Schwarz and A. Grubb, ‘Why Britain Can't Afford Informed Consent’ (Hastings Center Report, 1985). The report is critically reviewed in Bulletin No 16 of the Institute of Medical Ethics (1986).

35. Any additional cost cannot be built in on an item by item basis as is recommended in the USA in Making Health Cure Decisions. See also What Are My Chances Doctor? (op cit).

36. Chapter 7, ‘Legal Reforms and Limitations’, of Making Health Cure Decisions, stresses that the ‘blunt instrument’ of the law of battery and negligence can never alone deal with the complexities and implication of shared decision-making and effective communication with patients.

37. [1985] 1 All ER 643.

38. ‘Failure of Medical Advice: Trespass or Negligence’ (above) at p 149.

39. See Teff (op cit) for a clear and forceful account of the advantages of trespass as a means of vindicating patient autonomy.

40. However even in the USA there appears to he no reported judgment in which a patient recovered for dignitary harm alone in a claim based solely on inadequate disclosure; see Making Health Care Decisions (op cit) at p 25, note 35.

41. Wilson v Pringle [1986] 2 All ER 440.

42. It was held in Malloy v Shanahan (1980) 421 A 2d 803; A 2d 803 that failure to disclose the risks inherent in drug therapy could not in the absence of physical contact (eg injecting drugs) constitute a battery.

43. Disclosure of risks in relation to prescription drugs and the role of patient participations in prescription monitoring in central to the report What Are My Chances Doctor? (op cit) from the Office of Health Economics.

44. See Making Health Care Decisions (op cit) at p 108.

45. (Op cit) at p 21.

46. See Hamilton v Hardy (1976) 549 P 2d 1099 (Colo App 1976); Sharp v Pugh (1967) 270 NC 598; 155 SE 2d 108; Marsh v Arnold (1969) 446 SW 2d 949 (Texas Ct App) and note recent litigation leading to a settlement in which British women received substantial compensation for undisclosed risks inherent in the contraceptive ‘Pill’.

47. (1986) Times, 17 June and see (1987) Times, 15 April, CA.

48. (1980) 165 Cal Rept 308; 27 Cal (3d) 285, 611; P (2d) 902.

49. [1985] 1 All ER 643 at p 633. And see Sir John Donaldson MR [1984] 1 All ER 1018 at p 1028 and in Lee v South West Thames AHA [1985] 2 All ER 385 at pp 389–390.

50. (1986) Times, 17 June.

51. The Court of Appeal's decision in Blyth v Bloombury AHA (1987) Times, 11 February raises doubts about what degree of disclosure is required in relation to contraceptive treatment. The Court said that even when expressly questioned by the patient the doctor had no obligation to reveal all the information available to him about the controversial drug Depo-Provera, in determining how much to tell Mrs Blyth the issue of what would be the proper answer in the light of responsible medical opinion was relevant but not apparently conclusive.

52. (1987) Times, 15 April, CA.

53. Hatcher v Black, (1954) Times, 2 July.

54. Supra, n51.

55. In The Times report the relevance of Gold v Haringey AHA (above) setting a higher standard of disclosure for non-therapeutic interventions does not appear to have been canvassed.

56. See Mrs Savage's own account in The Savage Inquiry, (Virago, 1986).

57. At p 653.

58. At p 660. Note once again the emphasis placed on disclosure in relation to surgery and the consequent dismissal of its importance in relation to drug therapy. Only Lord Diplock in Sidaway expressly recognises the importance of warnings and consent in relation to drugs, at p 658.

59. See above at pp 174–175.

60. See Lord Diplock's bland assumption that what the highly trained barrister wants to know from his doctor he will ‘elicit’ by ‘cross-examination’ and the masses will not want or be able to deal with such information: at pp 658–659.

61. What is desperately needed is empirical research in England on patients' attitude to information and health-care decisions on the lines of that already extensively published in the USA.

62. (1987) Times, 11 February.

63. See Makinq Health Care Decisions at p 27.

64. Reibl v Hughes (1981) 114 DLR (3d) I; Hopp v Lepp (1981) 112 DLR 67; Ferguson v Hamilton Civic Hospitals (1983) 144 DLR (3d) 219.

65. Ferguson v Hamilton Civic Hospitals (op cit); White v Turner (1981) 120 DLR (3d) 269.

66. Eg in requiring much more detailed information re cosmetic surgery than ‘health-promoting’ procedure. White v Turner (op cit), where the court held that the ‘reasonable patient’ would have refused cosmetic breast surgery if fully informed of the risks raises a nice point. The reasonable patient (as defined by an elderly male judge) may place a much lower premium on attaining the perfect bust than any particular young woman. The doctor via the reasonable patient test may thus be penalised for complying with his patient's express wishes.

67. White v Turner (op cit) at pp 283–284.

68. At p 653.

69. See Making Health Care Decisions op cit at pp 23, 101: and see A. Meisel and L.D. Kabrick ‘Informed Consent to Medical Treatment: An Analysis of Recent Legislation’ 41 v Pitt LR 407.

70. See Halushka v University of Saskatchewan (1965) 53 DLR (2d) 436.

71. At p 662.

72. See The Doctor's Duties of Care under Sidaway [1985] NILQ 243 at p 250.

73. The problems of self-serving testimony are fully discussed in Making Health Cure Decisions at p 26.

74. At p 651.

75. The prime method of enforcement once standards were agreed could be left to the General Medical Council disciplining doctors for misconduct who failed in their duties of disclosure. In 1986 two doctors were suspended from the Medical Register for failing to disclose to the parents of a small boy the inherent risks of surgery to remove a blemish from his lip. The boy died. Recognition by the GMC that failure to inform patients adequately of hazards of treatment is misconduct is a significant advance for the development of patient autonomy.

* While it has been possible for some amendments to be made to this article in the light of the Court of Appeal's judgment in Gold v Haringey AMA (see (1987) Times, 15 April, CA), it should he noted that the article was written before judgment on appeal was given in this case.

Patient autonomy and consent to treatment: the role of the law?*

  • Margaret Brazier (a1)


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