Modern legal and ethical requirements have significantly impacted doctors' approach to patient involvement in decisions in relation to treatment with a "discernible tendency to overload the information dumped upon patients about infinitesimal risks until the unhappy souls are either scared out of their wits or disregard the lot as incomprehensible mumbo-jumbo ". Legal concepts of consent within the ambit of medical ethics establish three fundamental elements of proper consent. Academic reasoning propounds that the fundamental purpose of obtaining patient consent to a specified treatment is to protect doctors against committing an actionable tort of battery. Lord Donaldson emphasised this justification in Re W (a minor) adopting the analogy of a legal "flak jacket", which protects doctors from litigious claims and sanctions their right to proceed with treatment without litigious consequences. In highlighting the legal purpose of consent as operating as a "flak-jacket"; Lord Donaldson also pointed out the clinical purpose of consent, which is essential to efficacious medical practice.
Key Words: Medical negligence, patient consent, minor patient, parental rights, consent, valid consent, Gillick competence, Vicarious Liability, Human Rights, ECHR, Human Rights Act 1998.
[...] Although minor in this particular case lacked competence for consent, Lord Donaldson addressed the situation where those with parental responsibility may override the refusal to consent by a competent child. Lord Donaldson asserted that even if a child was “Gillick competent” and as such refused treatment, the parent's right to consent did not automatically disappear, but it could not simply be used by itself to defeat consent given by a child. In addressing the conflict of this view with Lord Scarman's assertions of “terminating” and “yielding” in the Gillick case, Lord Donaldson made a distinction and suggested that Lord Scarman was referring to the parental right to determine whether or not a child should receive such medical treatment and adopted a key holder analogy whereby both parent and competent child hold a key and either can give valid consent and if one chooses not to give consent, it doesn't necessarily stop the other from lawfully doing so. [...]
[...] Furthermore, from an ethical viewpoint regarding consent to treatment, the General Medical Council's ethics guidelines[9] (the Guidelines) focus on the need for patient autonomy and highlights recommendations for informing patients at all stages of the treatment process. Accordingly, the Trust must ensure that all options available have been communicated to and discussed regarding Peter's treatment including the risk of undergoing the proposed treatment and the risk of refusing treatment PETER'S RIGHT TO REFUSE TREATMENT It is important to highlight at the outset that in order for any patient consent to be valid, the patient must have received sufficient information to be regarded as having “informed consent[10]”. [...]
[...] Medicine, Patients and the Law. 4th Edition Penguin Books. General Medical Council Guidance on Good Practice., op. cit. M. Brazier op. cit. Section 8 of the Family Law Reform Act 1969 provides that minors between the ages of 16-18 can consent to treatment. (1985) 3 ALL ER 492. Per Lord Scarman. Re R minor) (warship: medical treatment) (1992) Fam 11. This rule was also held to apply to minors between 16-18 in relation to refusal of treatment in Re W minor) (medical treatment) (1993) ALL ER 627. [...]
[...] Council of Europe Publishing J P H Shield, (1994) Children's Consent to Treatment, British Medical Journal, Volume 308 Page 1182. All case law reports available at www.lawreports.co.uk All UK statute law available at www.opsi.gov.uk and www.statutelaw.gov.uk European Convention on Human Rights available at www.echr.coe.int All General Medical Council reports and guidelines available at www.gmc- uk.org Other Web Resources www.publications-parliament.uk www.patient.co.uk www.bma.org.uk The Right Honourable Sir Robert Carswell, Lord Chief Justice of Northern Ireland., (2004). Consent to medical treatment –does doctor know best? [...]
[...] Consent to medical treatment –does doctor know best? The Ulster Medical Journal, Volume 73 No1 pp.37-44. Gilbert and Tripp (2003), Consent, rights, and choices in health care for children and young people, Journal of Medical Ethics 29 Edition 13. J Drake (2001) Informed Consent? A child's right to autonomy Journal of Child Health Care, Volume Page 101. British Medical Association., (2001) The Medical Profession & Human Rights: Handbook for a changing agenda. London Zed Books (in association with BMA). European Network of Scientific Co-Operation on Medicine and Human Rights (1998). [...]
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