Medical Ethics: The Principles of Informed Consent in Medical Law and Practice By Adeiye F. Adenekan

Medical Ethics: The Principles of Informed Consent in Medical Law and Practice

Copyright © 2021 By Adeiye F. Adenekan

Introduction

Informed consent is a process where a medical practitioner gives a patient information about the treatment, or test that the patient wants to undergo, which results in the authorization of the treatment by the patient based on the information given. The patient’s understanding of the information and the subsequent consent to the treatment is known as “informed consent.”[1]

Every patient has the right to make decisions regarding their health without the interference of their health care provider; this is known as “patient autonomy.” Patient autonomy allows healthcare providers to inform the patient but not to decide.[2] When it is an invasive test or treatment, the patient would be asked to give written consent; however, not all treatments require written consent. For instance, physical examination of the body does not require written consent. The consent here is implied.[3]

Principles of Informed Consent

The major elements of informed consent include decision-making capacity, full disclosure of information, and voluntary consent.

1. Decision-making Capacity

The patient must possess the capacity to make a decision regarding the treatment he/she might want. On what constitutes decision-making capacity, it means the patient should:

1. Understand the available options and the consequences of choosing those options.

2. Be able to determine the effect of the decision and relate it to their values and priorities.[4]

Decision-making capacity is also referred to as competency. That a patient makes a decision that the healthcare provider thinks is not the best, does not mean the patient is not competent to make a decision. All that matters is the full understanding of the available option and the consequences thereof.[5]

2. Full Disclosure of Information

In order for the patient to give consent, the healthcare provider is expected to give detailed information—in terminologies that the patient will understand—about the treatment the patient will undergo. This information usually includes the procedure, the benefits of the treatment, as well as the risks involved. The information given by the doctor is to enable the patient to make an informed decision.[6] Where a patient is not properly informed and suffers harm as a result of the procedure, the doctor will be liable for negligence.[7]

3. Voluntary Consent

The consent given by the patient must be voluntarily obtained. The patient should not be coerced into making a decision based on undue influence or threat from the healthcare provider, spouse, parents, or religious leader. Any consent that was not voluntarily obtained cannot be regarded as informed consent.

The case of Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643 established the requirement of healthcare professionals to provide their patients with sufficient information to enable them to make a decision as to the proposed treatment. In the aforementioned case, the plaintiff had been treated by the defendant for many years for her numerous ailments. She had pain in her neck, shoulders, and arms, and the surgeon recommended cervical cord decompression, which she consented to. Unfortunately, she was left paraplegic and she alleged that the surgeon failed to warn her of the possible outcome. The plaintiff’s suit was dismissed on the grounds that she had been advised of the risks involved in the treatment and that the surgeon was not negligent in not specifically advising her of the risk of paraplegia because the risk of paraplegia in such surgeries was less than 1%.[8]

The duty of healthcare professionals to provide full disclosure about the risk of a particular treatment to a patient was further adumbrated in Chester v Afshar [2004] UKHL 41. Ms Chester, the Plaintiff, consulted the defendant, a neurosurgeon, for a solution for the back problem she had been battling with for a long time. The defendant proposed micro-discectomy surgery. She consented to the treatment and the defendant proceeded with the surgery. However, the surgery left Ms Chester with cauda equina syndrome, and she instituted a suit, alleging that she was not warned of the 1–2% risk of neurological injury. It was held that the defendant owed a duty to the plaintiff to warn her of the risk involved in the procedure.[9] Lord Bingham at para 16 (Chester v Afshar [2004] UKHL 41) stated thus:

A surgeon owes a general duty to a patient to warn him or her in general terms of possible serious risks involved in the procedure. The only qualification is that there may be wholly exceptional cases where objectively in the best interests of the patient the surgeon may be excused from giving a warning…In modern law, medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well-established, risk of serious injury as a result of surgery.

The principle of informed consent was also endorsed in Montgomery v Lanarkshire Health Board [2015] UKSC 1. In this case, the plaintiff, an insulin-dependent diabetic, was due to have a baby boy. She was told that her baby was larger than the average size for gestation, but she was not informed about the difficulties the size of the baby might cause during delivery. She was also not told that the risks of shoulder dystocia (where the baby’s shoulders are too wide to pass through the pelvis without medical intervention) were 9-10 percent, being a diabetic mother. Mrs Montgomery’s labour was induced at 38 weeks and shoulder dystocia arose. This resulted in a fraught delivery, the umbilical cord became occluded, and the baby was subsequently diagnosed with cerebral palsy; had the baby been delivered by Caesarean section, he would have been born uninjured. It was held that a treating clinician had a duty to ensure that the patient was informed about any material risks and any alternative treatments that were available.[10]

As stated in the above cases, healthcare professionals are required by law to give their patients vital information that will enable them to reach an informed decision. Failure to take this step will amount to negligence should the patient institute an action against the medical practitioner.

Exceptions to Informed Consent

Inasmuch as healthcare providers are required to disclose information on the procedure of treatment to their patients to enable them to reach an informed decision, there are situations whereby healthcare providers will not be required by law to obtain consent before carrying out their professional duties.  These instances are as follows:

1. When the patient is not competent to make an informed decision.

2. During emergency situations, where there is inadequate time to obtain consent.

3. Where the patient waives voluntary consent.[11]

Refusal to Consent

Patients who have the capacity to make medical decisions also have the legal and moral right to refuse any treatment, even though such a decision is medically unwise. The patient can choose to withhold consent irrespective of the fact that the decision to withhold consent may result in disability or death.[12]

In Re T [1992] EWCA, the patient, who was at the point of delivery, refused a blood transfusion on religious grounds; as a result of that, the baby was stillborn and the patient’s condition deteriorated further. The Court of Appeal held that in a situation where a patient refuses to consent to treatment, a healthcare provider must consider the patient’s capacity at the time. Upon being satisfied that the patient has the capacity to give or not to give consent, then the healthcare provider must respect the refusal to consent, no matter how irrational the refusal may seem.[13] If the patient does not have the capacity to make the decision, the healthcare professional can treat without consent on the basis that it would be in the patient’s best interests.[14]

Informed Consent in Nigeria

By the virtue of sections 37 and 38 of the Constitution of the Federal Republic in Nigeria, the privacy of Nigerians and their freedom of thoughts, consciences, religion, are guaranteed. These constitutional rights enable Nigerians to reject a form of medical treatment on religious grounds. The conduct of medical practitioners in Nigeria is governed by the Code of Medical Ethics of the Medical and Dental Council of Nigeria. Rule 19 of Rules of Professional Conduct for Medical & Dental Practitioners deals with informed consent and is in all fours with the above cases and definition. In Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001) 6 NWLR (Pt. 710), the Supreme Court ruled that:

“the patient’s consent is paramount… the patient’s relationship with the doctor is based on consensus. It follows that the choice of an adult patient of sound mind to refuse informed consent, barring state intervention, through judicial process, leaves the practitioner helpless to impose any treatment.”[15]

Consent should be informed and it is given by persons with sound mind. Consent obtained by fraud, coercion, manipulation, etc., is not an informed consent.

The Rights of Children to Informed Consent

Usually, minors are not legally empowered to give informed consent because they are not competent to make such decisions. However, persons under the age of 16 have been proven to have the capacity to give informed consent, irrespective of their age. In the notable case of Gillick v West Norfolk and Wisbech Area Health Authority & Another [1985] 3 All ER 402, one of the issues for determination was “whether a girl under 16 years of age has the legal capacity to give valid consent”. The Court held that a girl under the age of 16 years did not lack legal capacity by reason of her age. The issue for the doctor was whether the girl has a sufficient understanding and intelligence to enable her to properly and fully understand what was proposed.[16] Where a child is not Gillick Competent (i.e. the child is young and does not have the capacity to make a decision in respect of their medical care) and there is an issue with consent, the court can authorise a medical treatment that is in the interest of the child. This is resorted to when the parents of the child disagree with the recommended treatment or the parents lack the capacity to make a decision in respect of their child’s treatment.[17]

In conclusion, a healthcare provider is expected to educate a patient about the benefits and risks of a medical procedure. The patient should understand the information passed across to enable the patient to make a decision on whether or not the patient will like to go ahead with the procedure. The decision that gives the healthcare provider the permission to continue with the treatment is known as “informed consent”.

The purpose of informed consent is to give patients the right to accept or refuse a specific procedure. For healthcare providers, the positive side of letting the patient choose a procedure after giving them the benefits and risks of that procedure is that in the event of an unfortunate incident, they cannot come around and institute an action against the healthcare provider. This is why hospitals and healthcare providers are advised to let their patients give their consent in writing.

Copyright © 2021 By Adeiye F. Adenekan

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[1] ‘What Is Informed Consent In Healthcare? 4 Principles, Important & Laws’ (eMedicineHealth, 2021) https://www.emedicinehealth.com/informed_consent/article_em.htm  accessed 19 February 2021.

[2] Ibid. Accessed 19 February 2021.

[3] Ibid. Accessed 19 February 2021.

[4] Ibid. Accessed 19 February 2021.

[5] Ibid. Accessed 24 February 2021.

[6] Ibid. Accessed 24 February 2021.

[7] ‘Consent & Confidentiality’ (Ministry of ethics, 2014) < https://ministryofethics.co.uk/?p=6> Assessed 25 February 2021.

[8] Elizabeth Larner, Rachael Carter, ‘The issue of consent in medical practice.’ [2015] British Journal of Haematology 300.

[9] Ibid.

[10] Ibid.

[11] Parth Sharh; Imani Thomton; Danielle Turrin; John E. Hipskind, ‘Informed Consent’ (NCBI Resources, 22 August 2020). https://www.ukessays.com/referencing/oscola/ Accessed 25 February 2021.

[12] ‘What Is Informed Consent In Healthcare? 4 Principles, Important & Laws’ (eMedicineHealth, 2021) https://www.emedicinehealth.com/informed_consent/article_em.htm  Accessed 25 February 2021.

[13] Elizabeth Larner, Rachael Carter, ‘The issue of consent in medical practice.’ [2015] British Journal of Haematology 300.

[14] Ibid.

[15] YZ Lawal, ES Garba, MO Ogirima, IL Dahiru, MI Maitama, K Abubakar, ‘The doctrine of informed consent in surgical practice.’ [2011] Annals of African Medicine. Volume 10 https://www.annalsafrmed.org/article.asp?issn=1596-3519;year=2011;volume=10;issue=1;epage=5;aulast=Lawal Accessed 26 February 2021.

[16]   Elizabeth Larner, Rachael Carter, ‘The issue of consent in medical practice.’ [2015] British Journal of Haematology 300.

[17] Ibid.