Bodily integrity is the fundamental right to choose what happens to your own body. Violating a person’s bodily integrity is unethical and, in some circumstances, illegal. This is an issue that sometimes arises in medical negligence cases.
In the context of medical treatment, the general rule is that clinicians are not permitted to give treatment to a patient, unless that patient has ‘consented’ to receive the treatment and has the capacity to give consent. Giving treatment without consent is at best negligent and in some cases, a criminal offence. There are a few exceptions to the rule, for example:
- If emergency life-saving treatment is required and consent cannot be obtained beforehand
- If the patient requires treatment of an infectious disease that has wider public health implications
- If the patient lacks mental capacity to understand information regarding their treatment and to make a decision about their treatment, in which case clinicians may adopt a best interests approach
The general principle that treatment should not be given unless you have consented to it stands in the overwhelming majority of cases.
In some circumstances, a patient’s consent to treatment may be implied. For example, if you attend for a blood test and hold out your arm for the test to be done, it will be assumed that in doing so, you are consenting to the test being carried out. In other circumstances, for example knee replacement surgery, implied consent would be insufficient and explicit consent must be given.
Consenting to treatment isn’t just a question of agreeing to treatment – you must give your ‘informed consent’.
In 2015, the Supreme court heard the case of Montgomery v Lanarkshire Health Board and ruled that patients must be told about the various treatment options reasonably available to them, and the risks and benefits of each of those treatment. If one of the reasonable options is ‘no treatment’, then this and the risks and benefits of no treatment must also be explained.
The clinician treating you doesn’t have to tell you about all the potential risks of the treatment in question but they do have a duty to take reasonable care to duty to make you aware of the ‘material’ risks associated with the recommended treatment and other treatment options available to you. The Supreme court said that this means that the doctor or clinician should consider what significance a reasonable person in the patient’s position would attach to the risk or risks in question.
Importantly, patients should be given adequate time to consider the information they are given and decide how they would like to proceed. In relation to pre-scheduled operations, it is not good practice for clinicians to provide advice regarding the operation and alternative treatment options at the last possible minute. The consent process should be started well in advance of the proposed operation and the patient should have the opportunity to ask any questions before they are asked to confirm their consent. The patient may not be asked to sign a consent form until the day of their operation but providing they have had the opportunity to speak to a clinician at an earlier appointment at which they were provided with all the appropriate information and had the opportunity to consider this prior to the operation, then signing the consent form on the day of surgery is acceptable.
If the patient has not been given all of the relevant information regarding the reasonable treatment options and the risks and benefits of those treatment options, then the consenting process is flawed and any consent given will not be informed. In the eyes of the law any consent purportedly given would be invalid and the treatment will have been given without consent.
Treating a patient without first obtaining their consent can amount to the criminal offence of battery in certain circumstances but in most cases, it is more likely to be a civil (not criminal) legal matter. For the purposes of a negligence claim against a doctor or NHS Trust it is not enough to show that you did not give informed consent to treatment. You must also prove that it is more likely than not that:
(b) If you had not undergone the treatment in question you would be better off than you are now and would have avoided injury and loss.
Consent claims can be very challenging. Sometimes it can be straightforward to prove that informed consent was not given but tricky to prove that consent would not have been given even if the appropriate advice had been given. Most frequently allegations of a failure to obtained informed consent arise alongside other allegations of negligence, for example the substandard technical performance of an operation, but sometimes, the failure to obtain informed consent is the central issue in a claim.