How then does the Doctor decide how much information to tell the patient? The American courts state it is what the prudent and reasonable patient would require. 15 English courts however adopted the Bolam test where reasonable medical opinion became the test of negligence, even if there was conflicting medical opinion stating they would not proceed in this manner. 16 Providing some doctors would testify that a lack of certain information was standard practice, the courts were now unwilling to find any doctor guilty of negligence or battery.
This effectively relinquished control of informed consent to the discretion of the medical profession. In Siddaway17 the doctor omitted to tell a patient of a 1% risk of spinal damage in an operation. This was found to accord with a responsible body of neurosurgeons, passing the Bolam test expected by law, and a point upheld by majority in the House of Lords. 18 They concluded that the patient did not specifically ask about all of the risks, and the doctor could not be expected to volunteer all of the information.
Lord Diplock stated that patients cannot understand their own best interests if they are given all of the information. Some must be withheld for their own benefit to stop irrational refusal of treatment. 19 In giving an example of significance as 10% risk of a stroke, Lord Bridge reflected a slight shift to the prudent patient test but in the end, paternalism through Bolam prevailed. 20 The House of Lords were now also satisfied most doctors would volunteer information satisfactory enough to allow an informed choice. Patient autonomy therefore required the patient to be proactive enough to ask of the risks for themselves.
More recently there has been a liberal shift of attitudes in the Court of Appeal. Smith v. Tunbridge Wells HA upheld that a reasonable body of opinion agreed with the defendant. The judge however stated the failure to warn the patient of such risks was ‘neither reasonable nor responsible’, using the words of Lord Bridge from Siddaway. 21 The House of Lords seemed to have modified the Bolam test in 1997, allowing a judge to decide between two conflicting medical opinions if one was not logically defensible. Negligence could now be proven even if in agreement with Bolam.
One drawback of Bolitho has been noted that such logically indefensible cases would be settled out of court without making a significant difference on negligence claims. Defendants must also prove they would have refused the treatment if properly informed. This does however signal a greater respect for patient autonomy, and allows the patient to decide what their best interests are (through the courts) rather than a panel of medical opinion. 23 Patients were now calling for an idiosyncratic approach to deal with the information they would require.
Doctors would have to assess each case differently and attempt to determine the amount of information the (prudent? ) patient would want rather than by the previous paternalistic approach. After Bolitho the courts seemed to give patients their autonomy back from the doctors and the right to adequate information on treatment. Refusal of Treatment True autonomous consent requires 3 criteria: i. Did the patient have the legal capacity to consent? ii. Was the consent based upon a knowledgeable choice? iii. Was the consent given voluntarily? 24
Capacity usually comes into question only when a conflict arises between what a patient and a HCW believes is the best interest. In Re T. ,25 Lord Donaldson declared ‘the right of the individual overrides the interest of upholding all human life – but in cases of doubt the resolution falls on the preservation of life. ‘ The grounds for going against the patient’s wishes were upheld due to impaired capacity, lack of information and undue influence or duress from the mother. This external influence effectively vitiated the patient’s autonomy.
Duress in the medical context however, could be hypothetically illustrated by the pressure on the patient of the consequences of refusal of a treatment, by difference to the doctor’s authority, or by a reaction to the stress of the condition or the medical environment. In this case the patient’s consent could also be seen as vitiated, and protecting the patient’s autonomy would hold the doctor liable in battery. 26 In Re C27 Thorpe J stated although one patient’s condition reduced his general capacity, ‘he understood and retained the relevant information.. and.. has the right to self determination.
‘The Re C test was subsequently set out, acknowledging that a fully competent patient may not make the right medical choice for their own reasons:29 i. Could the patient comprehend and retain the necessary information? ii. Was he able to believe it? iii. Was he able to weigh the information balancing the risks and needs to arrive at the choice? 30 Re C then seemed to test whether the patent could embark on a particular enterprise rather than deciding their general capacity. In contrasting Re C and Re MB31, the courts found it easier to see a distressed woman in labour incompetent over a man refusing treatment for his gangrene.
This seems obvious when looking at the consequences. The hospital staff would have had to watch a woman and her baby die in agony over a collected man seeking alternative therapy. We see one case of the courts deciding in favour of the patient’s autonomy (Re C) and another siding doctor’s belief of best interests (Re MB). Other cases involving non-voluntary caesarean section have later been found to be a trespass, it has been stated there is no valid reason allowing the foetus legal dominance over its mother,33 where the ‘view of the patient may reflect difference in values rather than an absence of competence’.