INFORMED CONSENT, ITS CORELATION WITH REFUSAL OF TREATMENT AND EXCEPTIONS

By

NYAPIDI DEBORAH ANGEL

1.0  INTRODUCTION

Health is a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.[1]

It is however pertinent to note that the right to health is dependent on the other human rights and the same was emphasized in CESCR General Comment 14. The right to health is influenced by a patient’s right to informed consent and right to refuse treatment.

2.0  INFORMED CONSENT

Informed consent entails the duty of a doctor to warn his/her patient of risk inherent in the treatment which he is proposing to enable the patient make a rational choice of whether or not to undergo the said treatment. This was discussed at length in Montgomery v Lanarkshire Health Board[2] where Mrs Montgomery, who suffered from insulin dependent diabetes mellitus went in for a vaginal delivery which was unsuccessful leading to a symphysiotomy. After the birth, the baby was diagnosed with cerebral and Erb’s palsy. Mrs, Montgomery attributed the diagnosis to negligence of the obstetrician which included the failure to inform her of the risk of shoulder dystocia among others that were associated with vaginal birth given her condition. 

The court in the above case referred to Sidaway Board of Governors of the Bethlem Royal Hospital[3] where Lord Scarman observed that the patient’s right to make his own decision may be seen as a basic human right protected by common law. He further stated, “If, therefore, the failure to warn a patient of the risks inherent does constitute a failure to respect the patient’s right to make his own decision, I can see no reason in principle why, if the risk materialises and injury is caused, the law should not recognise and enforce a right in the patient to compensation by way of damages”. However, he added that the doctor will not be liable if upon reasonable assessment of his patient’s condition he takes the view that a warning would be of detriment to his patient’s health. The doctor is also excused from conferring with the patient in circumstances of necessity for instance where the patient is unconscious or unable to make a decision.

The principle of informed consent has been recognised and incorporated in Ugandan legislation over the years. Article 10 of the Patient Charter[4] provides for every patient’s right to informed consent and the ways in which it may be given.

However, it should be noted that there are instances where medical care may be given without consent and these are provided for by Article 11 to include; where the patient’s physical or mental state does not permit obtaining informed consent, in the case of a minor or incapacitated person where it is impossible to obtain the consent of the patient’s representative or guardian, where the patient’s illness is a public concern and when court orders.

2.1  REFUSAL OF TREATMENT

The principle of informed consent is closely related to that of refusal of treatment. Patients require all the information concerning the treatment or medical procedure that they are meant to undergo in order to make an informed decision to either proceed with or refuse the treatment.  Every patient has a right to refuse medical treatment and this is provided for by Article 12.

Violation may give rise to liability in criminal law or trespass to person in tort law. However, it should be noted that this right is derogable in certain circumstances. The health provider has the right to perform the treatment against the patient’s will where; the patient’s illness is of public concern, the court orders, protection of the unborn, minor or disadvantaged person.

In Klovis Njareketa v The Director of Medical Services[5], 24year old Klovis had a malignant growth on his leg that required amputation in order to save his life to which the patient consented to but later withdrew said consent. He later sued for trespass to person. On appeal it was held that had the amputation not been performed, the appellant would have died. The appellant was alive and apart from his disability, was in perfect health. He was alive because of the defendant’s courage and skill and had in fact suffered no damage by reason of trespass.

The Court of Appeal went ahead to reduce the nominal damages that were awarded to the appellant in the court of first instance not out of lack of compassion for the appellant but under the justification that it is necessary to protect medical departments and all surgeons from unscrupulous claims of such nature. In conclusion the court held that the appellant is entitled to nothing in law and should have never brought the action.

Furthermore, in F v West Berkshire Health Authority[6] a mother of a 36year old woman who lived permanently in a mental hospital and had the mental age of a minor sought a declaration from the court to the effect that it would be lawful to sterilize her daughter even though she is unable to consent due to mental incapacity so that she may not become pregnant because she had entered into a relationship with a patient in the hospital. The court held that the operation was lawful as it was in the best interests of the daughter and that in the future it would not be necessary for a doctor to seek a declaration of legality before carrying out sterilization in similar circumstances but rather seek such a declaration.

In Re T (an adult) (consent to medical treatment)[7], Mrs T while 34 weeks pregnant was involved in a road accident and required a blood transfusion. The hospital patient assessment contained the entry; religious beliefs and relevant practices, Jehovah witness (Ex) but still has certain beliefs, given the history of her mother being a Jehovah’s witness. The issue in contention was whether she could be given a blood transfusion.

In resolution, the Court of Appeal held the view that although every adult has the right and capacity to refuse treatment ,if the patient has made no choice and a treatment need arises but the patient is in no position to, the practitioner can lawfully treat the patient. It was also of the view that when a patient refuses treatment it is important to consider whether the decision was made independently. In the instant case the court ordered blood transfusion having come to the conclusion that Mrs. T’s decision was influenced by her mother who was a Jehovah’s witness.

3.0  CONCLUSION

A patient’s right to health includes the right to informed consent and to refusal treatment however these rights are not in themselves absolute and there are scenarios such as the ones discussed above where medical professionals maybe depart from or have these rights limited provided it is in the best interests of the patient or the public.

LIST OF REFERENCES

[1] Constitution of World Health Organization.

[2] [2015] UKSC 11.         

[3] [1985] AC 871.

[4] Patient Rights and Responsibilities Charter, June 2019.

[5] [1950] 1 EACA.

[6] [1989] 2 AC 1.

[7] [1992] EWCA Civ J0730-8.