Montgomery v Lanarkshire  was a landmark judgment where the UK Supreme Court changed how autonomy is legally recognised. This overruled a dubious common law right, first confirmed and legally operative since Sidaway v Board of Directors of the Bethlem Hospital . In Sidaway, it was held that a patient has no right to claim for negligence when they failed to enquire as to all of the risks involved before undergoing a procedure that failed for no reason other than due to the established and foreseen risks related. Controversially, it was decided that the judgment of the medical professional – to decide which risks are worth divulging – was to be respected, regardless of the mathematical probability of an undisclosed risk being fatal.
The 2015 medical negligence case involved a woman, with underlying health problems, undergoing complications through natural childbirth because of the failure of her obstetrician to properly inform her of the risks. Unlike Sidaway , the judges in Montgomery established that patients should be informed of everything they wish to know before a procedure, as opposed to what the clinical assessment of the consulting professional decides is apt as relevant. Explicitly, the judgment separated a surgeon’s duty to advise from a patient’s right to decide, when of sound mind and body.
Yet, this evokes philosophical conundrums. It is not unreasonable to suggest that medical law exists at the precipice between consequentialism and deontology. The former regards how judgement of an action’s morality is dependent on the consequences of said action. The latter is a rule-focused assessment of the morality of an act. The intersection occurs when doctors have to evaluate the risks and complications of procedures within the framework of laws and codes which govern their professional practice.
The catastrophic effect of COVID-19 this year has further vexed this when considering the effect of impact legislation; striking at the heart of autonomous principles in patient rights and the increased pressure on medical staff to coordinate invaluable healthcare with the risk of exposure to a highly infectious virus.
What are your rights?
Patient rights are a legally recognised and enforceable obligation in UK medical law. For instance, failure by a medical professional to acquire ‘valid’, informed consent from a patient is regarded as a tortious failure and breach of established duty of care. The latter refers to a moral or legal obligation on an individual to act in a particular manner.
Additionally, a breach of the aforementioned duty of care can constitute a criminal offence, carrying with it the charge of battery. This is the unlawful and non-consensual physical contact or cause of contact of another’s body. Presently, claims for battery are limited to intentional acts negating, for instance, accidental contact on public transport at rush hour. The legitimacy behind justifying such a serious offence, imposed on those tasked with saving lives, hinges on the question of what actually is ‘informed consent’? Is it right that a doctor may face a criminal sentence if they successfully save a patient’s life but prior to this was negligent in acquiring valid consent? Is consent still relevant if the risk of harm involved is negligible (less than 1%)? Would such conclusions interfere with the fundamental ethics of medical practice by making doctors hesitant to carry out treatments which could otherwise save lives?
The origin of consent can be traced back to the height of classical Greece. Philosophers like Plato and Hippocrates were first to consider the idea that patients should decide whether they should be subject to medical assistance. The influence of this approach is embodied by how to this day can now choose to swear a Hippocratic oath: to act in a patient’s best interests. One example is how the ‘Royal College of Surgeons: Consent Supported Decision-Making – A Guide to Good Practice’, obliges surgeons to only provide information about reasonable treatments available, prior to a procedure.
Under the current law, a doctor’s responsibility to obtain informed consent can be simplified into three sequential questions:
- Does the patient know about the material risks of the treatment proposed?
- Does the patient know about reasonable alternatives to this treatment?
- Has reasonable care been taken to ensure the patient understands the risks?
They are not, however, obliged to undertake a cost-benefit analysis with the patient of all the available treatments, however unreasonable this may seem. This highlights one of many exceptions which characterise the notion of informed consent. Importantly, this presents a serious definitional problem in the current UK legal system, regarding exactly what we mean by informed consent
Similarly, surgeons do not necessarily need to divulge information to patients under a therapeutic privilege (exception) in England and Wales. Doctors can use this defence, if they believe that such information would likely cause ‘serious mental or physical harm’. This is based on the patient’s position following a standard risk assessment carried out by a doctor under a ‘materiality test’, such as whether a patient needs to know about the medical risks proposed.
Consent can either be given through a procedural form, which patients need to sign for legal acknowledgement of the risks associated with treatment, or via oral confirmation from a patient which has to be logged and reported by the patient’s attending physician. Albeit, this has been heavily debated as being a potential case of information overload for patients. This is because the type of form given is universal to every procedure undertaken in a hospital setting. Thus, the same extent of information, within such a form, is presented to a patient regardless of whether they undergo a yearly physical examination or triple-bypass heart surgery. Verbal clarification similarly completely negates the ‘informed’ quality of consent. A 2008 capsule endoscopy study recruited a cohort of healthy volunteers – where 90% were university educated and of these 60% were medical students. Despite this only 20% could recall the vital information surrounding drugs used and potential risks which was given during verbal consent confirmation.
How are medical rights legally recognised?
It is important to acknowledge that there are two basic rules clearly laid out in UK law regarding medical treatment and consent:
- There is no legal right to demand treatment in the UK
As per 2008 General Medical Council (GMC) regulation, ‘patients wishing to undergo treatment, when not clinically indicated as necessary, have no ethical or legal obligation to such treatment.’ This is practically embodied in how under NHS guidelines: ‘NHS hospital treatment is refused if a patient is not referred by a GP’ (a free service once properly registered), with the only exception being for ‘special clinics such as those for sexually transmitted diseases’ or in the ‘case of an emergency’.
- Neither is there an absolute right to consent
Consent, although legally recognised, is not reserved as a fundamental right in medical ethics. This is because it overlaps with paternalistic duties of the State to protect society as a whole; evoking utilitarian principles of the morality of actions as being judged by the best outcome for the greatest number of people.
Principally, absoluteness to consent is also troubled as it evokes a sense of complete validity and isolation to any concept it is applied to. Although the origin of autonomy is sourced from the 17th century Greek ‘autonomia’ meaning ‘having its own laws’’ – that is, the right or condition of self-government – it conflicts with the idea of absoluteness when considered macroscopically. The notion of self-government reflects freedom which, paradoxically, cannot be inherently absolute if the absolute of one’s individual freedom then infringes on the freedom of another individual.
This is a particularly pressing issue when considering 2020 COVID-19 legislation, which was widely criticised as infringing on individual freedom. Much disdain regarding this fell under the ‘paternalistic’ label of protecting others and the wider community. This evoked John Stuart Mill’s ‘Harm Principle’ as the restriction of freedom, against one’s will, is justified for ensuring that harm is not brought to others.
“[Autonomy] is the responsibility of fully informed patients to live with the consequences of their decisions.”Nigel Poole, Queen’s Counsel for the courts of England and Wales
Where similar criticism of paternalistic values can be targeted – when considering consent – is in the burgeoning field of what is considered ‘consent’ in UK law. Informed consent requires, under the Mental Capacity Act 2005, that patients have suitable ‘mental capacity’ and the ‘ability to communicate’. For young people and minors, however, the rules do vary.
Young adults (16 to 18 years old) can give independent consent to their own treatment. The consent of their parent or guardian is not required, although any decision made is subject to judicial approval when necessary for overruling.
This is acutely polarising when comparing the treatment of young adults to minors. For minors, the issue of ‘mental capacity’ depends on an evaluation of their level of understanding. However, fully competent children under NHS guidelines ‘cannot refuse or request treatment without approval from a doctor, Clinical Commissioning Group (CCG) or NHS Trust’.
Problematically, this directly conflicts with the medical precept that if a competent patient acts irrationally in deciding to consent to a procedure, this will not constitute a lack of capacity – regardless of age. Thus, doctors are forced to respect such a decision, even if following through with this could lead to the patient’s death. In this way, there is a lacuna or gap within the law where children, although certified as competent, are respected as adults when appreciating their consent to potentially life-threatening treatments – even if such a choice is rationally unsound from a medical perspective.
“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” – Dame Butler-Sloss, first Lady Justice of the Court of Appeal.
Regardless of whether such exceptions are necessary when evaluating their efficacy across specific examples of cases or not, the effect on autonomy and the wider sacrosanct of patient rights is unavoidable. For example, if a patient were to first – ask their doctor for a personal opinion regarding the procedure and second – to act on such a comment, this would be considered an exercise of autonomy.
Patient rights in a pandemic?
The importance of autonomy can be illustrated in its position as one of the cornerstones of human rights analysis in medical law and through the pivotal role it plays when considering the protection of the public from infectious diseases.
According to the Public Health (Control of Disease) Act 1984: an individual (who’s diagnosed as being infected with a contagious disease) has their right to consent limited by section 11 of the 1984 Act, which regulates that information regarding their diagnosis must be disclosed with authorities, regardless of whether a person infected with a contagious disease agrees to sharing that information. More widely appreciated, this also overlaps with the ‘joint account’ model of medical information. This is where shared ownership of genetic information such as that of a congenital trait that would worsen the effect of a disease if contracted is effectively shared if one source of that information (the patient’s) is made available to others – indirectly causing a breach of privacy.
Patients suffering from communicable diseases can also be forced to take their medicine under s. 37 and 38 of the Public Health Act through either ‘(a) supervised administration’ or (alarmingly) ‘(b) involuntary inpatient treatment.’
The importance of these legislations in relation to COVID-19 has been reflected in the Coronavirus Bill 2020 which effectively repurposed both Acts to afford stricter powers to contain the spread of the virus. This has further narrowed the existing limited scope of circumventing such legal procedures under a defence of rights violations.
On the other hand to patient rights, the advent of a pandemic also draws into question whether employee rights, that of medical professionals in the UK, are being infringed by the new legislation. NHS staff are being forced to manage dwindling resource allocation (as set out in the March legislation’s ), inadequate Personal Protective Equipment (PPE) and the growing risk of a tidal wave of medical negligence claims as a result.
“That which is not good for the swarm, neither is it good for the bee.”Marcus Aurelius
Unsurprisingly, there has been a growing advocacy amongst doctors for legal immunity, as suggested by the Medical Defence Union in April 2020. As the UK’s leading medical defence organisation, the MDU indemnifies negligence claims brought against doctors, usually by patients and their families. This is particularly relevant given the possible billions involved in negligence claims which could arise from the wake of the pandemic spread. The idea of healthcare workers coping with sudden changes in national legislation and government advice, whilst also managing to stay infection free with insufficient protection – both for their own personal protection and to continue to do their moral duty to help others – seems inevitably disastrous and fundamentally flawed. It seems a case of neither good for the swarm, nor the bee.
Albeit, such claims would not be limited to claiming damages. Most likely this would mostly be made up of legal fees reflecting protracted judicial processes as it is exceptionally difficult to establish negligence during a pandemic as has been noted through prior judgments: “the standard of care owed by an A&E doctor must be calibrated in a manner reflecting reality.” – Greene, J in Mulholland vs Medway NHS Foundation Trust . Similarly, this has also been criticised as negating the obvious legal obligations doctors have to patients as well as – problematically opening the door for rights infringements with no risk of penalty or threat of justice in a modern and democratic community.
The practical implications of these ethical discussions remain to be seen. Nonetheless, it is crucial that the appreciation of both personal rights (such as autonomy and right to refuse treatment) and legal obligations (like informed consent and rights to privacy) is continually reflected in both law and society. Such qualities are fundamental aspects of the individual and collective self and thus should remain as salient as ever for the continued health and prosperity of nations – even in the darkest of times.
Cover Image Attribution: Becker1999 under CC BY 2.0