Chapter 4 - Consent and autonomy
Beth suffers pain in her back and, working in an office, sits down all day, which made it worse. She is offered an operation that will relieve the pain, but carries with it a 1-2 per cent chance of nerve damage, even if performed properly. This nerve damage may lead to paralysis. The treatment team have not yet explained the risks to her as part of the consent process, and wish to know whether they should mention this risk. On the one hand, the risk is small and they are worried that Beth will panic and refuse consent to the operation unreasonably. The treatment team suggest that many doctors they know would not warn of the risk. On the other hand, they find it difficult to justify not informing a patient of all risks inherent in what is, after all, an elective procedure.
The treatment team consult their solicitor, Marc, who informs them that this case is eerily similar in fact to both Sidaway v Bethlem Royal Hospital Governors (p. 78) and Chester v Afshar (p. 86) (what are the chances of these facts coming up twice, nevermind three times!). She tells them that, while in Sidaway the risk was considered too small to have to be told to patients without prompting, in Chester, the court found that the risk was material. The lawyer's view is that, since the law increasingly prioritises autonomy, it would be difficult to justify not informing Beth of this risk.
Furthermore, it does not matter that other doctors might not warn of this risk - recent cases show that a risk is material if the reasonable patient would wish to be told of it, so what other doctors would do is not determinative proof of reasonable conduct. Indeed, Simon agrees with Marc that not to tell Beth of the risk because they are worried that she might refuse the operation is not only disrespectful of her autonomy, but also displaying a level of paternalism that the law no longer condones, and that medical ethics never supported. The tenor of the recent cases favour telling her of the risk.
- Department for Constitutional Affairs, Mental Capacity Act Code of Practice (Crown Copyright, 2007), http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf
- M. Donnelly, ‘Capacity Assessment under the Mental Capacity Act 2005: Delivering on the Functional Approach’ (2009) 29(3) Legal Studies 464 http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.2009.00133.x/abstract
- M. Gunn, ‘The Meaning of Incapacity’ (1994) 2 Medical Law Review 8 http://medlaw.oxfordjournals.org/content/2/1/8.full.pdf
- M. Jones, ‘Informed Consent and Other Fairy Stories’ (1999) 7 Medical Law Review 103 http://medlaw.oxfordjournals.org/content/7/2/103.full.pdf
- A. Maclean, ‘The Doctrine of Informed Consent: Does It Exist and Has It Crossed the Atlantic?’ (2004) 24(3) Legal Studies 386 http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.2004.tb00255.x/abstract
- A. Maclean, ‘Autonomy, Consent and Persuasion’ (2006) 13(4) European Journal of Health Law 321 http://www.ncbi.nlm.nih.gov/pubmed/17302359
- J. Miola, ‘On the Materiality of Risk, Paper Tigers and Panaceas’ (2009) 17 Medical Law Review 76 http://medlaw.oxfordjournals.org/content/17/1/76.full.pdf+html
- C. Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law (Oxford: Hart, 2009) http://books.google.de/books?id=H1ONPgAACAAJ
- O. O’Neill, Autonomy and Trust in Bioethics (Cambridge University Press, 2002) http://books.google.de/books?id=F_2z0qJgrUoC
- G. Stirrat and R. Gill, ‘Autonomy in Medical Ethics after O’Neill’ (2005) 31 Journal of Medical Ethics 127 http://jme.bmj.com/content/31/3/127.full.pdf+html