2.24  Consent:

The ethical principle that each person has a right to autonomy is fundamental and, according to Kennedy and Grubb (2000), finds its expression in law through the idea of consent. It is encapsulated in the judgement of Cardozo J in Schoendorff v Society of New York Hospital (1905) 105 N.E. 92:  “Every person being of adult years and sound mind has a right to determine what shall be done with his own body.”

The existence of a duty of care is  presumed to exist in the doctor-patient relationship. The duty to inform the patient in relation to the proposed treatment also forms part of the comprehensive duty owed by a doctor to his patient.  Hockton (2002) states that this duty has often and somewhat misleadingly been described as the duty to obtain “informed consent” but currently, the doctrine of informed consent forms no part of English law.

Hockton (2002) considers that the important question in this area of law concerns the nature and scope of the duty to inform and the extent to which this should be determined by doctors (the professional standard), patients (the subjective test) or some hypothetical and reasonable or “prudent” patient (the objective test).  In general terms the scope of the doctor’s duty is determined by reference to the “Bolam” test.

“A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art” (Bolam v Friern Barnet Hospital Management Committee [1957] 1 W.L.R. 582 at 587)

More recently, the “Bolam” test was reconsidered by the House of Lords in Bolitho v City and Hackney Health Authority [1998] A.C. 232 where Lord Browne-Wilkinson made some general comments on “Bolam”.  The body of opinion relied upon needed to be responsible, reasonable and respectable and have a logical basis.

The Bristol inquiry, which examined the quality of treatment and the consent obtained from parents of infants undergoing cardiac surgery highlighted the limitations of “Bolam”, Lord Irvine commented in reference to the inquiry “It may not be surprising if conspicuous illustrations of what could be described by some, neutrally, as the fallibility of some members of the profession were to lead to a more critical scrutiny of what might formerly have been represented and taken as standard views, within the profession, of what is acceptable practice.”

The report on the Bristol Royal Infirmary Inquiry emphasised the central role of consent in the provision of medical care according to Coulter (2002). The first 19 recommendations all deal with consent urging doctors to: involve patients (or their parents) in decisions; keep patients (or parents) informed; improve communication with patients (or parents); provide patients (or parents) with counselling or support;
gain informed consent for all procedures and processes; elicit feedback from patients (or parents)  and listen to their views; and be open and candid when adverse events occur.