Critically analyse the extent to which the tort of negligence and the tort of battery protect a patient’s right to make an autonomous decision when consenting to medical treatment.
The tort of negligence and the tort of battery are both limited in the extent to which they protect a patient’s right to make an autonomous decision when consenting to medical treatment. This problem remains that tort law does not protect notions of autonomy and hence the courts have been challenged to approximate the patient’s loss in other terms. Judges have been reluctant to rely on the tort of battery to protect a patient’s right to information disclosure arguing that negligence is the more appropriate route in many cases. Negligence however, requires the medical professions own standards to be those by which the information disclosure is judged. This standard has tended to favour the medical profession and leave patients unprotected.
Autonomous Decisions and Medical Treatment
The general principle in the law of England and Wales is that an individual has a right to self-determination with respect to their own medical treatment.1 In S v McC W v. W, Lord Reid stated:
There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will…. The real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty.2
This right to self-determination in relation to one’s medical care exists despite the consequences, including when the likely consequences is of the person’s death. In Re T, Lord Donaldson went so far as to say that the right to autonomy in decisions regarding a competent adult’s medical treatment is absolute.3 In order to protect this autonomy, the personal sphere in the right to bodily integrity and breach of consent can give rise to liability for the tort of battery and the tort of negligence.4
Valid consent requires that someone who has the capacity to consent and who understands what the treatment involves gives it voluntarily.5 Incapacity in this regard is defined under the Mental Capacity Act, section 2(1) and is characterised by ‘an impairment of, or a disturbance in the function of, the mind or the brain’,6 which prevents the individual from making a decision for themself at a material time.
Trespass to the person can be both a tort (battery) and a crime (assault).7 To establish an action in battery, it is necessary to establish three elements: force, direct application and intent.8 Consent to treatment, if it is based upon informed consent, will absolve a medical practitioner of a possible action in battery.9 Consent must be specific to the procedure carried out: if a patient consents to the removal of her appendix, but her uterus is also removed an action in battery is possible.10 The advantage of an action in battery is that it is not necessary to prove that physical harm has been caused where inadequate disclosure is made.11
The tort of battery has been used successfully in cases where treatment is given without patients consent. In the case of a refusal to medical treatment, the patient does not need rational grounds for refusal; the right of self-determination overrides the patient’s best interests. 12 The primacy of the role of autonomy has been stated many times within the English courts. In Re T, it was held that the refusal of treatment was not effective because of the undue influence of the patient’s mother.13 In St George Healthcare NHS Trust v S14, it was determined that a trespass had occurred due to a forced caesarean section, even though this was performed in order to save the life of the mother and her unborn child.
The courts have been reluctant however to allow the tort of battery to be used in order to protect patients’ interests in information disclosure15 so long as the patient provided consent to the procedure undertaken. In Chatterton v Gerson,16 the defendant doctor operated to block a sensory nerve to treat Miss Chatterton’s chronic pain. As a result of the operation the plaintiff lost the sensation in her right leg, she claimed that her consent was invalidated as she had not been made aware of the risk. Bristow J held that in this case no battery was committed. He stated
In my judgment once the patient is informed in broad terms of the nature of the procedure, which is intended, and gives her consent, that consent is real, and the cause of action on which to base the claim for failure to go into risk and implications is negligence, not trespass.17
This was confirmed by the House of Lords in Sidaway v Bethlem Hospital,18where it was held that questions of information and advice as to risks should be addressed solely through the tort of negligence, not through trespass to the person.
In The Creutzfeldt-Jakob Disease Litigation, the claimants had been treated with the Human Growth Hormone; they claimed that their consent was dependent upon the understanding that the drug had been lawfully prepared.19 May J confirmed that “There is assault and battery when there is a physical violation of a person’s body without true consent. There is only consent when a person consents to the nature of an act done”.20
The lack of judicial support for the use of battery in medical cases flows from the assumption that battery involves deliberately inflicted injury.21 Since a battery may also give rise to a criminal charge of assault, judges have been reluctant to criminalise by association, misguided decisions to withhold information from patients. 22
There have been a limited number of successful battery cases against medical professionals who have violated a patient’s autonomous decision-making. In Appleton v, Garrett 23 a dentist intentionally carried out extensive and unnecessary medical treatment for his or her own personal financial gain. Since he was clearly guilty of intentional and fraudulent wrongdoing, it seems likely that this was what persuaded the court of his liability in battery.
Legal scholars have observed the narrow application of the tort of battery by the courts and it has been suggested that a broader application of the tort of battery may better protect patients’ right to autonomy. Kennedy argues that although a patient may have consented to the medical procedure, if the information provided by the doctor may have been so inadequate that the patient was unable to make a decision based upon reliable information there should be no valid consent. 24 He suggests that if the law on battery were to be extended in this way, it would improve patient autonomy. Such a change would not however, remove the inevitable limitation on any protection provided by this tort in that medical treatment can only amount to battery if some sort of physical contact between doctor and patient.25
In negligence the test for information disclosure is that which the reasonable doctor would have given.26 In Sidaway, it was stated that the necessary and relevant information should be given. The implication of relying upon the tort of negligence in relation to autonomous consent is the application of the Bolam test.27 Lord Diplock in Sidaway argued that this was the test that should be used to determine whether the necessary and relevant information had been provided.
In Bolam v Friern Hospital Management Committee28, McNair J established the standard required from medical practitioners: “… he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”.29 Further, merely because there is a body of opinion, which expresses an opposing view, this does not establish negligence.30
The use of Bolam in a medical context has failed to protect patient autonomy due to its protectionist stance towards doctors.31 Two problems identified with the Bolam test are that (i) it supplants the court judgment with the judgment of the defendant’s medical expert; and (ii) it has been suggested that the courts have resorted to the habitual response of the Bolam test, and in doing so have avoided making their own judgments.32 The majority of the judges in Sidaway felt that the Bolam test might lead to too little protection of patient’s rights. The problem being that Bolam merely requires that the defendant obtains experts from his or her medical speciality who are prepared to testify that they would have followed the same course of action as was carried out by the defendant. When such practitioners appear honest and persistent in their views, neither the expert nor the defendant will be required to justify their practice.33
In Bolitho v City of Hackney Health Authority34Lord Brown-Wilkinson provided a clarification of the Bolam test. The House of Lords stated that it must also be demonstrated that the course of treatment adopted by the practitioner was both logical and defensible. In Pearce v United Bristol Healthcare NHS Trust,35 Lord Woolf MR chose to emphasise Lord Bridge’s speech in Sidaway, particularly in the light of Bolitho. Lord Bridge made clear that although the Bolam test should guide the issue he made two qualifications which made clear that the court could overrule the medical opinion if needed to take a view on two contrary medical opinions or if the medical opinion was unacceptable.
In Pearce, Lord Woolf further indicated that the doctor had to warn only of a significant risk and then online ‘in the normal course of events’. This is problematic in that a survey of doctors has revealed that there is little agreement upon which risks are so serious as to require patient disclosure.36 Hence, the law on medical negligence as guided by the Bolam test appears still to be inadequate at providing protection for the patient’s right to autonomy in decision making about their medical care. If there is a divergence of opinion about what is a significant risk, then it is insufficient for the courts to defer to medical opinion which is contradictory and the court’s must provide a standard in order to offer clarity of protection to patients.
In cases where a patient has asked a question about a particular issue, the Court of Appeal stated in Blyth v Bloomsbury HA,37 that the Bolam test would also apply. This means that if a question was asked, as long as the doctor gives a response with which is deemed appropriate answer by a responsible body of medical opinion, the answer will not be negligent even if it is not full.38 Again significant reliance upon the medical professions own standards means that it is possible that a wide divergence of what is deemed appropriate. This offers weak protection to the patient who wishes to be fully informed about the range of choices they may have in relation to their health.
The tort of negligence is also limited in its protection of patient autonomy since even if the patient is able to prove that the information provided was inadequate, there may still be difficulties in obtaining an award of damages.39 It is not sufficient just to show that information was inadequate, but the patient must also show that they have suffered loss as a result.
This situation was considered by the courts in Chester v Afshar 40in which Ms Chester was suffering from persistent lower back pain and consulted Mr Afshar about a procedure in which he advised the removal of three spinal disks. There was dispute about what occurred during the consultation, but Ms Chester argued that she had not received information about the risk of paralysis and would have obtained a second opinion if she had been warned. The House of Lords found Mr Ashfar negligent in this case; the loss that had occurred was the loss of opportunity for Ms Chester to seek a second opinion and then have the operation on another day when paralysis may not have occurred as a result. Loss in these terms is difficult to quantify, as Herring argues, “the real loss to the patient was the loss of opportunity to make an informed decision for herself; an infringement of her right to autonomy and right to human dignity”.41 Such losses are not recognised as wrongs in the law of tort and hence the limitations of the law of tort in protecting patient autonomy is that the courts are challenged to find something that amounts to an approximation of this loss and award damages accordingly.
Both the tort of negligence and the tort of battery have been found to offer only limited protection of a patient’s right to make an autonomous decision when consenting to medical treatment. Although there are a number of cases, where clear wrongdoing has occurred and the courts have found a suitable loss to be compensated for, too frequently the courts have relied upon the medical professions own standards to determine whether negligence has occurred. Since these standards are widely diverse, it is hard for the lack of disclosure to be deemed negligent, if the defendant doctor can find reasonable medical opinion to support their position. The tort of battery has also been limited in the protection it affords due to the emphasis on the need to find a deliberately inflicted harm upon a patient, which occurs rarely in cases of medical practice.
1 Alasdair Maclean, Autonomy, Informed Consent and Medical Law: A Relational Challenge (Cambridge University Press, 2009) p.149
2 S v McC W v. W 1972 AC 24,43
3 Re T (Adult: Refusal of Treatment) 1992 3WLR 782, 786
4 Maclean, supra n.1, p.150
5 Emily Jackson, Medical Law: Text, Cases, and Materials (Oxford University Press, 2014) p.166
6 Mental Capacity Act 2005, section 2(1)
7 ibid p.172
8 Catherine Elliot and Frances Quinn, Tort Law (7th Edition, Pearson, 2009) p.320
11 ibid p.173
12 Jenny Steele, Tort Law: Text, Cases, and Materials (Oxford University Press, 2012) p.55
13 Re T(Adult: Refusal of Medical Treatment) 1992 4 All ER 649.
14 St George Healthcare NHS Trust v S 1999 Fam 26
16 Chatterton v Gerson 1981 QB 432 (QBD)
17 ibid at 443
18 Sidaway v Bethlem Hospital 1985 AC 871
19 The Creutzfeldt-Jakob Disease Litigation 1995 54 BMLR 1 (QBD)
20 ibid, per May J
21 Jackson supra n.5, p.174
23 Appleton v Garrett(1995) 34 BMLR 23 (QBD)
24 Ian Kennedy, ‘The Fiduciary Relationship and its Application to Doctors’ in P Birks (ed) Wrongs and Remedies in the Twenty-First Century (Clarendon Press, 1986) p.111
25 Jackson supra n.5, p.175
26 Steele, supra n.12, p.58
27 ibid p.59
28 Bolam v Friern Hospital Management Committee 1957 1 WLR 583,
29 ibid at 587
31 Steele, supra n.12, p.128
33 M. Brazier and J. Miola, ‘Bye-Bye Bolam: A Medical Litigation Revolution?’ (2000) 8 Medical Law Review, 85-114, p.96
34 Bolitho v City of Hackney Health Authority 1998 AC 232
35 Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118
36 G G Palmboom1,D L Willems N B A T Janssen and ,J C J M de Haes, Doctor’s views on disclosing or withholding information on low risks of complication (2007) 33Journal of Medical Ethics2007:67-70
37 Blyth v Bloomsbury HA 1993 4 Med LR 151
38 Jonathan Herring, Medical Law and Ethics (2nd Edition, Oxford University Press, 2008) p.152
39 ibid p.153
40 Chester v Afshar 2004 4 All ER 587
41 Herring, supra n.39, p.154