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 autonomy of the patient and the right to refuse to consent to medical treatment should be considered fundamental principles of medical law. Indeed, that this is the position confirmed by Dame Butler-Sloss in Ms B v An NHS Hospital,1 in which she reiterated her own assertions in Re MB (Medical Treatment),2 where she stated that “a mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death”. This paper will examine whether such a right is protected by the tort of negligence and the tort of battery, in terms of providing a remedy where the principle has been breached.3
The Tort of Battery
Although it is perfectly possible that, as a matter of law, a medical professional who performs treatment upon a mentally competent patient without their consent, could be liable criminally in the law of battery,4 it is far more usual for actions to be brought either in the tort of negligence or in the tort of battery.5
In terms of battery, it has been suggested that the most appropriate definition of tort in the context of medical law is that a battery has been committed where there has been a “direct act of the defendant which has the effect of causing contact with the body of the plaintiff without the latter’s consent. At the present time, battery is usually brought only for intentional acts”.6 Therefore, in order for a battery to be established, there must have been direct contact with the patient, without that patient’s consent. The consent, rather than “furnishing a defence”7 negates the committal of a wrong, because the lack of consent is essential to the wrongful action itself.8
The first difficulty with this definition is what one should consider to be required in order to establish that there has been a direct contact9 with the patient and whether it is possible to separate issues of directness from issues of consent. Some commentators, such as Brazier and Cave, claim that physical contact must be necessary with the effect that, for example, “a patient who agreed to take a drug orally, having been totally misled as to the nature of the drug, could not sue in battery”.10 This is because battery requires there to have been a lack of consent; where there has been such consent, the tort of battery will be unable to protect a patient even if the consent was simply to taking the drug, rather than to consenting to taking a particular drug.11 In this sense, it seems clear that the tort of battery may be limited in the extent to which it is able to protect the patient’s right to make an autonomous decision when consenting to medical treatment.
The requirement of directness is indeed more problematic than simply in the scenario above. Whilst there may be straightforward cases where there has been direct touching, regardless of the apparent seriousness of that touching so that “a pin prick is as much of a battery as major surgery”,12 there may be cases where although there has been a lack of consent to the actual drug taken, there is not sufficient directness to establish a battery and thus this tort will once again be limited in the extent to which it can protect a patient’s right to autonomy in consenting to medical treatment. This view is supported by other commentators who state, for example, that in a situation where a prescription is written by a doctor without sufficient consent being granted by the patient who still later chooses to have the prescription filled and take the tablets, there would be no battery.13 This author would observe that in cases such as the latter example, it is difficult to argue that not only is the element of directness missing, but that in reality, there has not been the lack of consent required in order to establish a battery. Although the doctor may have written the prescription without the consent of the patient, the patient appears to have since consented to the ingestion of the tablets and thus the requirements of battery have not been fulfilled. However, other, arguably rather more coherent examples, have drawn attention to scenarios which appear to be contrary to the views of Brazier and Cave above. Maclean asks whether, where a doctor instead of writing a prescription, simply “hands the patient a cup containing the tablets which the patient later ingests”14 this may constitute the directness required in order to establish a battery. Citing the American case of Mink v University of Chicago15 in support of his argument, he argues that directness would be able to be found in such a scenario,16despite the lack of physical touching which Brazier and Cave suggest is necessary. The issue once again however, is whether there has been a lack of consent; the patient in Maclean’s example clearly consented to taking the tablets, the issue is whether that consent was informed consent17 as to the type of drug taken, rather than physical consent to ingesting a tablet. It seems that in UK law, cases concerning informed consent fall under the law of negligence.18 Indeed, for there to be a successful cause of action being brought under the tort of battery, it appears that what is needed is “a complete absence of consent”19 and therefore, where consent is “deficient”20 in some way, such as in the scenarios outlined above, any action will lie in the tort of negligence. It is therefore clear that once again, the tort of battery is limited in the protection it is able to offer to patients in respect of their right to autonomy in consenting to medical treatment.
The work will now move on to consider whether the tort of negligence is able to provide greater protection to such patients; however, it must be noted that in a situation where there has been a complete lack of consent and where the requirement of directness is required, the tort of battery, unlike the tort of negligence, will provide a remedy even if no harm21 has been suffered by the patient. In this sense, the tort of battery is “focused on the protection of the patient’s right to make decisions about his or her medical treatment”22 and therefore in principle, even if not in substance, the tort of battery does provide some protection of the patient’s right to autonomy in consenting to medical treatment.
The Tort of Negligence
The discussion above has highlighted that where there is a lack of clarity regarding whether consent is informed, any action must be brought in the tort of negligence. It also made clear that in order for a successful action to lie in the tort of negligence,23 harm must have been suffered by the patient. This discussion will therefore focus primarily on these two aspects of the tort of negligence, in order to ascertain the extent to which the tort is able to protect the right of patients to autonomy in consenting to medical treatment.
The issues discussed in terms of the tort of battery earlier in this work highlighted that there may be a distinction drawn between consenting to treatment or the taking of medication per se, but that such consent may not be considered informed either due to a medical practitioner misrepresenting the nature of the treatment or failing to disclose all information about the medication or procedure involved.24 Informed consent does not require absolute disclosure of the risks involved; in order for negligence to be established in terms of non-disclosure, the medical professional must have failed to take reasonable care to disclose material information which either the doctor must be aware that the patient would attach significance to any risk, or that a reasonable person would have considered the risk significant.25
However, it seems the approach taken towards breach of this duty has been traditionally decided from the perspective of the standard of medical care given, rather than the desire to protect patient autonomy. 26 In Sidaway v Bethlem,27 for example, Lord Diplock asserted28 that the only test should be based upon the so-called Bolam29 test, whereby the decision of the professional to disclose information would be supported by the judiciary if a recognised body of medical practitioners would have taken similar action;30 Lord Bridge agreed subject to the caveat that where the risk would be so important to the patient, the Bolam test would be inapplicable.31 It is argued that even Lord Bridge’s test demonstrates the commitment of the court in Sidaway to developing a standard medical practice, rather than protection of patient autonomy: autonomy for Lord Bridge seemed only important where the risk of harm was substantial, rather than being a right which requires protection for its own sake.32As such, this author would agree with Brazier, who has observed that Lord Bridge simply paid “lipservice”33 to patient autonomy. It is therefore clear that the tort of negligence in terms of non-disclosure and thus informed consent is not able to adequately protect the right to autonomy of all patients, but simply those at risk of serious harm where there has been non-disclosure.34
This argument may be supported by more recent case law; in Pearce v United Bristol NHS Healthcare Trust,35 a doctor failed to disclose a risk of less than 2% that a stillbirth may result from a continued pregnancy, where that pregnancy had already exceeded the expected delivery date. Lord Woolf asserted that the right of the patient to “determine for him or herself as to what course he or she should adopt”36 based on disclosure was subject to there being a “substantial”37 risk to the patient. Where a doctor would not consider the risk as being something which would affect the judgment of a reasonable patient, there was no duty to disclose and therefore a failure to do so would not constitute a breach of duty required for there to be a negligence action.38
Arguments about when a risk would be considered substantial are largely beyond the scope of this work, although courts have stated that it is undesirable to place defined percentages on this risk.39However, it is submitted that if negligent non-disclosure is only triggered by a substantial risk, one cannot consider the full autonomy of the patient to be protected by the law of negligence.40 The recent Supreme Court decision in Montgomery v Lanarkshire Health Board,41 an appeal from the Scottish Courts, does appear to have taken a step away from Sidaway, so that the duty to disclose will be considered from the perspective of protecting autonomy rather than the standard of medical care.42However, disclosure is still to be decided in terms of the reasonable patient, rather than the actual autonomy of the individual patient43 and as such, despite this development, the law of negligence is still limited in its ability to protect the autonomy of individual patients in consenting to medical treatment.
Further, even if there has been a breach of the duty to disclose, harm must be suffered44 in order for there to be a successful action in negligence. This may be illustrated by Chester v Afshar,45 in which it was held that regardless of the negligence of the consultant neurosurgeon not to have disclosed the risk of paralysis, if there was no harm suffered then the consultant would not be liable in damages.46 Of course, in the instant case, the claimant had suffered paralysis and it was held that it was immaterial that the claimant may have decided to take that risk at a different time; the harm suffered was enough.47 Despite the need for there to be harm, Chester does establish that the tort of negligence does go some way to protecting patient rights to autonomy. This is clear from Beary v Pall Mall,48 in which it was held that Chester would not be influential in the general law of tort; but was part of the aim of the law to protect patient autonomy in consenting to medical treatment,49 even if overall, it has been shown that the tort does not go far enough in doing so.
The tort of battery only offers limited protection to the patient’s right to make autonomous decisions when consenting to medical treatment, despite its focus on the rights of the patient rather than the actions of the medical practitioner. This is largely due to the requirements of consent and directness. The tort of negligence, at least in the sense of non-disclosure, appears to be framed around establishing a standard of professional conduct, rather than seeking to protect the rights of patients. Indeed, this is emphasised by the fact that even if there has been negligence in terms of that disclosure, unless there is harm, a negligence claim will not be successful. It is therefore clear that neither the tort of battery nor the tort of negligence go far enough to protect patient rights of autonomy in consenting to medical treatment.
1 Ms B v An NHS Hospital (Re B (Consent to Treatment, Capacity)) 2002 EWHC 429 Per Dame Butler-Sloss at 20
2 Re MB (Medical Treatment) 1997 2 FLR 426 per Dame Butler-Sloss at 432
3 A Maclean, Autonomy, Informed Consent and Medical Law: A Relational Challenge (Reprint Edition, Cambridge University Press 2013) 150
4 J Herring, Medical Law and Ethics (Fifth Edition, oxford University Press 2013) 150
6 FA Trindale, ‘Intentional Torts: Some Thoughts on Assault and Battery’ (1982) 2 Oxford Journal of Legal Studies 211-237, 216
7 Airedale NHS Trust v Bland 1993 1 ALL ER 821 per Lord Mustill at 891
9 Fowler v Lanning 1959 1 QB 426
10 M Brazier and E Cave, Medicine, Patients and the Law (Penguin, 2007) 101
11 L Johnston, ‘Informed Consent and the Lingering Shadow of Chester v Ashfar’ (2015) SLT 19 81-84, 82
12 M Brazier, ‘Do No Harm – Do Patients Have Responsibilities Too?’ (2006) CLJ 65(2) 397-422 ,416
13 Maclean (n3) 151
15 Mink v University of Chicago 460. F. Supp. 713 (1978)
16 Maclean (n3) 151
17 A Maclean, ‘The Doctrine of Informed Consent: Does it Exist and Has it Crossed the Atlantic’ (2004) Legal Studies 24(3), 386-413, 386 (abstract)
18 Johnston (n11) 82
19 Johnston (n11) 82
21 S Michalowski, ‘Trial and Error at the End of Life – No Harm Done?’ (2007) Oxford Journal of Legal Studies 27(2) 257-280 ,268
22 Herring (n4) 151
23 Johnston (n11) 82
24 J Garfield, ‘Reductio ad Absurdum’ (2014) Med Leg J 82(1) 38-40, throughout
25 A Maclean, ‘From Sidaway to Pearce and Beyond: Is the Legal Regulation of Consent any Better Following a Quarter of a Century of Legal Scrutiny?’ (2012) Med Law Rev 20(1) 108-129, online edition no page numbers available
27 Sidaway v Board of Governors of Bethlem Hospital 1985 AC 871
28 ibid per Lord Diplock at 892–894
29 Bolam v Friern Hospital Management Committee 19571 WLR 582
31 Sidaway (n27) per Lord Bridge at 898–900
32 ibid at 900–901
33 M Brazier, ‘Consent to Treatment and the Role of the Law’ (1987) 7 Legal Studies 169-193 185
34 Maclean (n25)
35 Pearce v United Bristol NHS Healthcare Trust (1998) 48 BMLR 118
36 ibid per Lord Woolf at 59
38 Maclean (n25)
41 Montgomery v Lanarkshire Health Board 2015 UKSC 11
42 L Sutherland, ‘Case Comment: The Law Finally Reflects Good Professional Practice’ (2015) Rep B 123 4-8, 7-8
43 M Brazier and J Miola, ‘Bye Bye Bolam: A Medical Litigation Revolution?’ (2000) 8 Med L Rev 85, 110
44 Johnston (n11) 82
45 Chester v Afshar 2004 UKHL 41
47 ibid per Lord Hope at Craigshead at 87–88
48 Beary v Pall Mall Investments 2005 PNLR 35 per Dyson LJ at 41
49 C Foster, ‘The Last Word on Consent’ (2015) NLJ 165(7647) 8-9, 8-9