Issue of Consent and Approaches in Courts

 The decision in Montgomery v Lanarkshire Health Board [2015] marks a notable shift in jurisprudence on the issue of medical paternalism.[1] However, Montgomery is merely medical paternalisms belated obituary, not it’s death knell. This piece will discuss the issue of consent, in relation to both adult and children patients, consider the different approaches the courts take to these two groups whilst referring to the ethical issues surrounding the approaches. This piece will then discuss access to treatment, elaborating on the law and policies surrounding access to treatment and the avenues a patient has if access is denied.

It will ultimately be argued, agreeing with the source quote, that the doctor-patient relationship has changed since Sidaway v Bethlem Royal Hospital [1985].[2] Bodies such as the Department of Health have given patients more rights regarding consent, statutes such as the Human Rights Act 1998[3] have changed the view patients have with their practitioner and the NHS itself is actively encouraging patients to act as consumers. It will be argued that these are the reasons why the paradigm of the doctor-patient relationship has changed; Montgomery simply enshrines in law what medical professionals have been doing for some time.

 The principle of personal freedom in healthcare was defined in Re T [1993],[4] and also laid down in statute in section 1 of the Mental Capacity Act 2005.[5] Re T held that every (competent) adult has the right to decide whether or not to consent to treatment. However, that consent can be affected by information disclosed (or not disclosed) during consultations, as was the legal issue in Montgomery, which involved a claim against a healthcare professional for inadequate disclosure of risks regarding a natural birth. [6]

Historically, information was not disclosed to patients ‘for many patients through this cause have taken a turn for the worse’. [7] These words were echoed by Lord Templeman when he said, ‘too much information may prejudice the attainment of. . . restoring the patient’s health.’[8] Additionally, Bioethicist Carl Schneider argues that ‘many patients reject the full burden of decision autonomists would wish upon them’.[9]

This is no longer the case. The judgment in Montgomery highlights this, discussing social changes such as the increasing use of the internet wherein information on treatments can be found.[10] As Lords Kerr and Reed stated: ‘it would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors’.[11] Research conducted in 2014 by Özan reinforces this. Özan found that only 5.2% of patients signing a consent form before a medical procedure found the form ‘frightening’ and 11.9% found it ‘difficult to understand’.[12]

Furthermore, research conducted by Harris et al. found that 72% of 1251 respondents would prefer to discuss treatments with their doctor and for the two of them to decide together on how to proceed.[13]

Receiving information is a fundamental aspect of how a patient decides whether to consent to a proposed treatment or not and the Department of Health and Social Care (DoHSC) recognised this long before Montgomery, issuing guidance to clinicians on consent to treatment first in 2001.[14] The guidance allows patients to ask for differing levels of information disclosure, ranging from being informed of everything, to allowing complete decision making to the practitioner.

This new approach to a more patient-involved decision-making process is clearly more ethical than the approach taken in Sidaway as it gives rise to respect for patient autonomy, a key factor of the Principlism approach.[15] Respect for patient autonomy states that patients have the right to make decisions over what medical treatment they should receive.[16]

Patients are no longer regarded as passive recipients, the DoHSC has made that clear in their policies. Society has changed, as have patients, Özan shows that information disclosure is unlikely to cause a patient to ‘take a turn for the worse’ and that patients do understand medical matters. Patient involvement, evidenced by Harris, with respect for patient autonomy is the correct way to approach consent, the DoHSC have been implementing this approach since 2011, Montgomery merely enshrines the approach in law.

 As mentioned above, the rules of consent apply to every (competent) adult, however the goalposts change when children are involved.

In order to treat a child, a doctor needs consent (save for an emergency). The courts have developed the Gillick competent test,[17] which allows a child who has sufficient maturity and understanding to make a competent decision about the issue involved.[18]

Whilst the courts are taking a less paternalistic approach to adults regarding consent, the courts still appear to be invoking the parens patriae doctrine regarding children and consent. The scope of the doctrine can be seen in R v Gyngall [1893],[19] where it was held that ‘the court is placed in a position . . . to act as supreme parent of children.’[20] This doctrine was reiterated in Re T [1997] by Lord Justice Waite, justifying the courts intervention for the ‘best interests’ of the child.’[21]

Whilst this piece recognises that Gyngall and Re T (minor) involved children who (due to their age) were unable to be ‘Gillick-competent’, the mention of these cases is important as the courts appear to be relying on the parens patriae doctrine when considering cases involving children able to be ‘Gillick-competent’ who are seeking to refuse treatment.

Gillick shows us that children can consent to medical examination and contraceptive treatment, however, this appears to conflict with the decision in F v F [2013],[22] which involved refusal to receive an MMR vaccine. Both cases involved children of approximately the same age, however, the child in F v F was given the vaccine despite her protest. Further cases highlight the courts reluctance to grant children the collateral right to refuse treatment as they do to consent, as was the case in Re E (A Minor) [1993].[23]

The above cases illustrate the threshold children need to meet when making life threatening decisions is high as opposed to making treatment decisions. However, this piece contends that threshold needs to be high. As Thesis J stated in F v F: ‘making a decision against the children's wishes is an important factor, but must be balanced against their level of understanding of the issues and what factors have influenced them.’[24] It would not be absurd to suggest that a lack of understanding when consenting to contraceptive treatment is less catastrophic than refusing an MMR vaccine which could potentially be fatal.

The approach to children and consent is in line with the consequentialism approach. It is ethically justified to impose treatment as the end result will arguably cause more good than bad. Children could be influenced into making decisions, as was suspected in F v F, and whilst the child may carry their decision into adulthood, it is for the practitioners to advise and the courts to decide the best interests for the child until that time comes.  

This piece has shown that the relationship between children and doctors has not experienced such a significant shift as their adult counterparts. Whilst Gillick has enabled competent children to make decisions about treatment, therefore exercising choices, there remains a heavy paternal involvement by the courts in relation to refusal of treatment.

Patients, be that adults or children seeking to receive treatment, are now widely regarded as persons holding rights. However, as Quick has outlined, this direction of travel has resulted in consumerism finding its way into the NHS.[25]

As shown above, patients are entitled to information disclosure, they are more engaged in their care and this is facilitated by the increased availability of information online.[26] This piece argues that patients are actively encouraged to act as consumers, take, for example, the NHS Choice Framework, which explains how patients can choose their hospital, their doctor, their treatments and how to complain if choice is not offered.[27] That argument is further evidenced by the fact that there were no challenges to NHS funding decisions in the first 30 years of its existence.[28] Additionally, increasing awareness of rights under the HRA has arguably not only encouraged patients to act as consumers, but also cements the view in the source quote that patients are ‘now widely regarded as persons holding rights’. [29]

Section 1 the Health and Social Care Act 2012 requires the Secretary of State to ‘promote a comprehensive health service, not to provide one.’[30] This was discussed in R v North Devon Health Authority [2001], wherein Lord Woolf stated: ‘A comprehensive health service may never, for human, financial and other resource reasons, be achievable.’[31] Finances are allocated from government to Clinical Commissioning Groups (CCGs) who are responsible for commissioning health services in their areas.

Whilst this piece recognises other law and policies governing access to treatment, such as Individual Funding Requests (IFR’s), The Cancer Drugs Fund and the Quality Adjusted Life Year (QALY) approach, they will not be discussed due to word constraints.

If a patient wishes to take her CCG to court for failing to provide treatment, this is most likely to be done by means of judicial review.[32]

One example is if funding for certain surgeries is ‘blanket banned’, as was the case in R v Lancashire Health Authority [2000],[33] involving two patients suffering from gender identity dysphoria who requested gender reassignment surgery. The Health Authority refused to pay for the treatment, although in exceptional cases, the Director of Public Health could authorise the funding. Auld LJ did not accept that it was never really imagined that the Director would authorise such funding, therefore, the approach was unlawful.

Auld J, in the same case, agreed that the health authorities were entitled to make lists of treatments which were not a priority, and agreed that it would ‘make sense’ to give gender reassignment surgery a lower priority than treatment for cancer, heart disease or kidney failure.[34]

This shows that whilst patients are treated as consumers, the courts recognise that the NHS has a budget and that certain treatments may be of a lesser priority.

This gives rise to ethical considerations. In R v Cambridge Health Authority [1995],[35] a child suffering from leukaemia was refused treatment and her father requested that Cambridge Health Authority fund for private treatment, this was refused and the father then sought an order from the court. 

At first instance, Laws J ruled in favour of the father, emphasising that the health authority had to ‘do more than toll the bell of tight resources’.[36] However, this decision was reversed by the Court of Appeal. The reversal appears to conflict with the religious ethicists view of the sanctity of human life. For example, a Christian may argue that human life is a gift and it should be preserved and enhanced. The decision to not fund the private treatment surely does not preserve or enhance life. Additionally, in the case of Raqeeb v Barts NHS Trust [2019],[37] it was considered that the ‘continuation of life-sustaining treatment was consistent with the religious tenets by which Tafida was being raised.’[38]

 Statutes, cases, policies and social changes have been discussed, illustrating that the paradigm of the doctor relationship has changed. The reality is that patients have a more involved role in decision making since Sidaway, the counterarguments that patients reject the full burden of decision making and that it could lead to patients ‘taking a turn for the worse’ have been discussed and disproved. Patients prefer a more active role, and societal changes such as the inception of the internet have made patients more informed on medical matters. However, this active role, alongside the encouragement of choice by the NHS and the awareness of rights via the HRA has changed the way patients view their relationship with the medical profession. This piece has argued that patients are now treated as consumers, and this can, as has been discussed, become problematic due to funding. The law and policies relating to the allocation of that funding have been discussed, concluding that although the NHS is not a supermarket for surgery, the law will allow for challenges to be made.

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[1] Montgomery v Lanarkshire Health Board [2015] UKSC 11 (hereinafter referred to as: ‘Montgomery’)

[2] Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 (hereinafter referred to as: ‘Sidaway’)

[3] The Human Rights Act 1998 (hereinafter referred to as: ‘HRA’)

[4] Re T (Adult: Refusal of Treatment) [1993] Fam 95 (hereinafter referred to as: ‘Re T (Adult)’)

[5] The Mental Capacity Act 2005, section 1 (hereinafter referred to as ‘MCA 2005’)

[6] Montgomery v Lanarkshire Health Board [2015] UKSC 11

[7] The BMJ, ’Hippocratic Corpus’ (2011) BMJ 342 <https://bit.ly/2OfPUu4> accessed 14 November 2019

[8] Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 p.904

[9] Carl Schneider, The practice of autonomy (OUP 1998) p.xii

[10] Montgomery v Lanarkshire Health Board [2015] UKSC 11 [76]

[11] Montgomery v Lanarkshire Health Board [2015] UKSC 11 [76]

[12] Mehmet Özgür Özan, ‘Do the Patients Read the Informed Consent?’ [2014] Balkan Med J 31 (2): 132-136

[13] Louis Harris, et al. ‘Informed consent and the structure of medical care. In: President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioural Research. Making health care decisions: the ethical and legal implications of informed consent in the patient-provider relationship (Vol. 2, Government Printing Office 1982) 17-316

[14] Department of Health. Good practice in consent implementation guide: consent to examination of treatment (London: Department of Health, 2001)

[15] Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics (OUP 2014)

[16] Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics (OUP 2014)

[17] Gillick v West Norfolk and Wisbech Area Health Authority [1984] QB 581 (hereinafter referred to as: ‘Gillick’)

[18] Gillick v West Norfolk and Wisbech Area Health Authority [1984] QB 581

[19] R v Gyngall [1893] 2 QB 232, 57 JP 773 (hereinafter referred to as: ‘Gyngall’)

[20] R v Gyngall [1893] 2 QB 232, 57 JP 773 p.241–42.

[21] Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 W.L.R. 242 (hereinafter referred to as: ‘Re T (Minor)’)

[22] F v F [2013] EWHC 2683 (Fam) (hereinafter referred to as: ‘F v F’)

[23] Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 38 (hereinafter referred to as: ‘Re E’)

[24] F v F [2013] EWHC 2683 (Fam)

[25] Oliver Quick, Regulating Patient Safety: The End of Professional Dominance (CUP, 2017) pp. 19-21

[26] Montgomery v Lanarkshire Health Board [2015] UKSC 11 [76]

[27] NHS, ‘Guidance: NHS Choice Framework’ (Gov.uk, 2019) <https://bit.ly/2pB3O1G> accessed 16 November 2019

[28] Emily Jackson, Medical Law: Text, Cases and Materials (5th edn, OUP, 2019) p.78

[29] The Human Rights Act 1998

[30] The Health and Social Care Act 2012, section 1 (hereinafter referred to as: ‘HaSCA 2012’)

[31] R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213

[32] Civil Procedure Rules 2000 SI 2000/2092, Rule 54.1 (hereinafter: ‘CPR’); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (hereinafter: ‘GCHQ’); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

[33] R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977 (hereinafter referred to as: ‘ex p. A’)

[34] R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977

[35] R v Cambridge Health Authority ex p. B [1995] 1 WLR 898 (hereinafter referred to as: ‘ex p. B’)

[36] R v Cambridge District Health Authority, ex p. B [1995] 1 FLR 1055

[37] Raqeeb (by her litigation friend) v Barts NHS Foundation Trust; Barts NHS Foundation Trust v Begum and others - [2019] All ER (D) 19 (Oct)

[38] Raqeeb (by her litigation friend) v Barts NHS Foundation Trust; Barts NHS Foundation Trust v Begum and others - [2019] All ER (D) 19 (Oct)