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The research paper deals with the question whether excessive involvement of the patients into consent and decision-making procedure, before their treatments, might violate the possibility of treating them properly or not. For this purpose, the researcher aims at critically evaluating the English law of medical consent and the changes that have occurred over the past two centuries in England and Wales. Taking consideration of the case of Lord Templeman in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  AC 871, the researcher has critically evaluated the change in the medical scenario regarding patient involvement and consent as well as providing recommendations for mitigating the issues related to this.
With the passing days, it has been noticed that the traditional practice of doctors executing the treatment process according to their decision have been eradicated with the process of taking the consent of the care users by the caregivers. This has become necessary as in many scenarios such as the case of Rogers v Whitaker, it has been noticed that the doctors have breached the laws by not making the patients aware of the risks that are associated with the operations and the treatment process that have been undertaken. Hence, this has led negative effect on the care users.
Therefore, law of consent have been introduced in Wales and England, which has helped in eradicating the contemporary practice of solely relying on the decision of the doctors, by the patients. As it has been noticed that there has been a considerable increase in the capabilities of the care users related to the decision making process, therefore, the consent of the care users are considered which helps in easy execution of treatment process. In many cases, the loopholes in the execution of duties by the doctors have been noticed. This is mainly because of the fact that the doctors overlook the requirement of advising the patients related to the risks that are associated with the treatment process and the taking the consent of the parents or the care users.
Hence, the introduction of European Convention of Human Rights has helped in safeguarding the rights of the patients and considering the opinions of the patients while undertaking the treatment process. However, it has also been noticed that the empowerment of the care users have led to too much intervention of the care users in the treatment process. Hence, this at times have stood to be as an obstacle for the doctors for the easy execution of medical activities and often led to the emergence of conflicts between the care users and the givers.
Hence, changes have been inculcated in Medical Law so that it might help the doctors to carry out the activities with the approval of the patients. In this respect, Human Tissue Act, 2004 have been introduced which has established a legal framework related to the consents of the care users while undergoing the process of transplantation of organs. At the same time, Mental Capacity Act, 2005 has also been brought into effective where the consent of the care users have been made as mandatory and in cases where the care users are regarded as incapable of taking decisions, the consent of independent mental capacity advocate is required.
Therefore, the recommendations such as maintaining distinctions with patients regarding disclosing information, maintaining law of consent before every treatment and executing decisions solely taken by expert medical practitioners might prove to be beneficial for the caregivers. This can help them to carry out their activities in smooth manner by controlling the excessive interventions of the care users and at the same time considering their extent to limited level.
In a health care and treatment organisation, seeking consent is considered as the most important activity that doctors, care professionals, nurses and health practitioners need to carry out prior to the treatment, diagnosis or care of the patients. In addition to its importance, generating the consent of the patient has become a matter of major concern as well, in the present era of health care. It is so because the patients have currently become notable entities in terms of making decisions for their interventional strategies and care practices. As opined by Huprich, S, K Fuller, & R Schneider, there has been a significant change in the perception that patients have for their care practitioners as compared to that they possessed for the latter before 20th century. As per the Human Tissue Act 2004 and Mental Capacity Act 2005, significant changes have been observed in relation between patients and doctors. In the case, Lord Templeman in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  AC 871, the plaintiff alleged on the circumstances of negligence that resulted in the failure of the incident by a surgeon. The surgeon refused to disclose or explain to the patient the risk of inherent in the operation that the doctor advised to do.
This research paper will focus on the English Law in consent to Medical interventions and treatment. Moreover, this essay will make an analysis on the development of the law of consent in England and Wales of the doctors towards patients, while identifying the loopholes in approaching the various aspects of duty of care. At the same time, several case studies will be evaluated and how effectively the laws have been implemented in those cases will be analysed. By the end of the paper, the researcher will intend to make certain
recommendations to make the laws and provisions better for both the doctors and the patients.
Consent to medical interventions is the principle that states that a person, be it the patient or the members of the family of the patient must give their consent or permission to the doctors before the doctor commence with any type of treatment or examination.
It was especially during the 20th and 21st century that the laws related to consent of medical interventions was brought into highlight. There have always been approaches from the side of the patients that doctors know best. Little approaches were made to determine what the patients ought to be told. The doctrine of informing patients and their consents to be obtained was adopted in the North American jurisdiction. Later, the law was implemented with the English law. According to this law, the patients are informed primarily about any kind of risk prior to any kind of operation or treatment. Again, as it was stated by Dimond, that successful defence to an action of negligence is based on the extent to which it stays as a duty of the doctors to warn the patients. However, it was opined by Sargent, that focus should be made upon the medical profession rather than the patient.
A few case studies can be stated in this respect,
In this case, a patient called Ms Carole Chester had gone for lumbar disc protrusion surgery. The doctor did not claim anything before the surgery. However, the surgery resulted in a disaster. Ms Chester was left partially paralysed. The case was elated to the House of Lords and there it was concluded that it ought to be the responsibility of the doctors to warn the
patient or other members about the chances of failure of the surgery. Lord Bingham stated that the failure could be easily concluded as a breach of duty of care.
From this incident, it can be well established that every patient should be told of any kind of possible significant adverse outcome of any kind of treatment.
In this particular case, the woman needed a caesarean section for the delivery of her baby. However, at the last moment she withdrew her consent at the last moment because she had a needle phobia. The doctors arrived into a great dilemma about their decision to carry out the operation. On the other hand, the hospital obtained a judicial declaration that stated that it would be lawful to carry out the procedure of delivering the baby.
The court upheld the appeal of the doctor that at that time, the woman refused the treatment proposed by the doctor but the doctors carried out the treatment. The court gave their decision that an individual’s decision might vary depending on certain factors such as pain, fear, confusion or effects of medication. However, at certain instances, it might depend on the doctors to take certain steps based on the situation.
Law of Consent has evolved dramatically over the years in the field of medical treatments, especially in Wales and England. As per the views of Tang, initially in the early years, the patients used to rely upon their doctors and medical practitioners for whatever type of therapy
their medical practitioners would imply for them. However, Turner contradicts to this view by stating that in the present time, phenomenon of consent has changed, mostly due to the increased capabilities of patients to take decisions for them.
According to English Law all adults are presumed to give certain “capacity”, which means certain ability to use and understand information that would help them to make better decision. Again, it has been mentioned that certain persons who suffer from any kind of impairment such as dementia or bipolar disorder lack capacity.
An increasing degree of casualty and frankness on the part of the doctor has resulted in considerable increase in the anxiety among the patients. The patients prefer themselves to be participated as an equal partner while taking major decisions. Thus, there is bound to arise certain disputes regarding the issue. This problem has long been recognized and many such interventions were undertaken. One such disclosure was the introduction of ‘therapeutic privilege’. As per the guidance of the law, if certain problems arises at a regularly basis when the patients are informed that there is certain risk in taking the chances of any kind of operation or treatment. People become traumatic and discretion with the information provide to them. These scenarios sometimes cause serious psychological harm to the patients. Thus, there remains a debate whether to disclose the situation to the patient or not. However,
it might be pointed out in this respect that a minimum legal standard is to be kept and people should be educated about the situation.
In 1957, a typical tort law case was laid down assessing an appropriate standard of the reason of negligence cases related to skilled professionals like doctors. This standard was meant to measure the skills and ability of the doctors. This was called as Bolam test . According to the test, if the defendant or the doctor in this case, has to prove him or herself that he or she has an average skill or ability that expects a certain standard which proves that the person is responsible enough to carry out with the decision even if others are differing with the decision. In order to understand this capability, a Bolam Test is to be carried on these professionals.
Thus, from the above discussion it can be easily stated that various such changes have been seen in the development of the law of consent of England and Wales.
There are certain loopholes that arrive at the time of approaching the various aspects of the duty of care. Like, sometime situations become so critical that the doctors have to take instant decision on the condition of the patient and perform the treatment or the operation. There are several cases when it became necessary for the doctors to take instant steps to cure the condition of the patients. In fact, in those situations the patients also did not came out with any kind of issues against the professional. In this respect, a case study can be stated:
As per the decision in Rogers v Whitaker (1992) 175 CLR 479, Mrs Whitaker who was the respondent had been blind in her right eye since she was 9 years old. It was when she was 47
years old; she got a regular eye check up. The doctor advised her that the doctor would be able to remove the scars from her right eyes. This would improve her appearance and would possibly restore significant sight to the eyes. The woman agreed to the advice and decided to carry out the operation. It was however, found that after the operation no such improvement was found in her right eye. In fact, she developed inflammation and sympathetic ophthalmic in her left eye. This led to loss of sight in the left eye as well. Thus, the woman suffered from complete blindness. When Mrs Whitaker filled a case against the doctor, it was ultimately advised by the court of law that it was the duty of the doctor to inform about the loss that the person might suffer from.
Thus, it can be said that there are situations when it becomes very necessary for the doctors to warn the patients about the outcome of the operation or any kind of treatment that will be undertaken by the doctor.
It has been noticed that the change of jurisprudence because of the changing social circumstances as in case of Godwin v UK has led to lowering the effect of the remedies that are provided by Strasbourg. Previously the recommendation that were provided by the concerned organisations has been more fruitful as it was more practical. However, the continuous change of the recommendations have led to lowering the impact of remedies and failed to yield results that are more effective.
The European Convention of Human Rights has been introduced with the motive of protecting the human rights as well as the fundamental freedoms of the citizens of UK. The Convention has established a court related to the protection of individuals from violations related to human rights. As per the findings of a study, it has been noticed that the introduction of the convention has helped in making the citizens of UK become aware of the
rights that they possess. Hence, it can be noted that the care users are liable to know about the treatments that they receive so that they have a complete knowledge about their treatment process. In case of Rogers v Whitaker, it has been noticed that the patient that is Mrs Whitaker was unaware of the risks related with the operation that has been undertaken and therefore had lost complete eye sight. Hence, in this regard it can be inferred that the consent of the concerned patient was very much required which could have helped in receiving the opinions of Mrs. Whitaker and save her from losing the eyesight. Although it has been found out that according to Bolam principle, the attitude of the doctor that is Mr. Roger related to not advising the patient about the inherence of the risks is not considered as negligence. This is because of the fact that he has proceeded with the practice that was existing at that time. However, European Convention of Human Rights rejected this.
On the other hand, according to the findings of research paper, it has been noted that the empowerment of the care users related to the intervention in the treatment process has also imposed a negative impact. This is because of the fact that in many cases, the care users refuse to accept the treatment process even if it is appropriate for them thereby, causing a hindrance for the doctors to execute their responsibilities.
The Human Tissue Act, 2004 has been able to set a legal framework related to the storage as well as the utilisation of tissues from living. At the same time, it has also introduced the legal framework for the removal, storage and the utilisations of tissues from the dead, which
On the other hand, the works of Samsi, Kritika et al. has highlighted the fact, the introduction of The Mental Capacity Act, 2005 has been successful in setting a statutory framework which has helped in taking the decision of treatment on behalf of the care users who are unable to take the decisions by themselves. Hence, this act has established the statutory principles, which govern the decision related to the authorities who can make them and the time when they can take the decisions. It has also focussed on the fact that the legal requirements are set related to assessing whether an individual is lacking the capacity to take a decision. Furthermore, this act has rendered the duties on the NHS bodies to instruct an advocate related to independent mental capacity for speaking on behalf of the person who lacks the capacity to take decisions or has no person to speak on their behalf except hired
staff. Hence, this has helped in protecting the rights of the individuals, who lack the capacity to make the decision on their own. Moreover, it has also helped in receiving the consent of the care users, which is an important part of the treatment process. As per the finding in of a research paper, it has been noticed that the care users are liable to possess the knowledge related to their treatment process so that they are able to give their consent and feel safe and protected in order to proceed with the treatment. However, the consent of the patient missed in case of Ms B v An NHS Hospital Trust. In spite of the refusal of MS B to keep the ventilator switched on, the hospital authorities kept it on for the betterment of Ms B. However, court has considered it unlawful act.
Hence, this has been contradicted in another research paper where it has been highlighted that the interventions of the care users in many scenarios made it difficult for the caregivers to proceed with the treatment process even though it is for the betterment of the care users.
In most of the scenarios, it has been noticed that the doctors themselves acted as the authority of the care users and took decisions on behalf of the care users. Although, it has been useful in some cases, it proved to be disadvantageous and drawback of the treatment process in many cases. In most of the scenarios, the sole decisions taken by the doctors proved to impose a negative impact on the patients, which happened in case of Rogers v Whitaker.
Moreover, it has also been noticed in case of Glass v United Kingdom, where a continuous conflict occurred between the parents of the care user and the hospital authorities who intervened the private life of the care user. Hence, this imposed a strong negative impact on the patient and the parents of the care user and proved to be a drawback for the doctors.
Hence, it has been viewed in a study that with the passing days, it has become necessary for the doctors to consult with the patients and abide by the opinions of the care users, which can help in easy execution of the responsibilities of the doctors. Moreover, the consent of the patients also helped in winning the confidence of the patients and therefore gaining their loyalty. Hence, it has also enabled to execute the process of treatment in an easier and legal manner without any disapproval of the care users. At the same time, it is also the duty of the doctor to maintain the confidentiality of the medical information of patients, which have noticed in case of Campbell v Mirror Group newspapers.
However, this view has been contradicted in another study where it has been highlighted that it cannot be demanded by health care users to compel, the professional to engage into unlawful acts such as committing suicide. This has been noticed in case of Burke v GMC, where it has been highlighted that the patients do not posses legal rights to compel the doctors to conduct activities, which are not, indicated clinically.
With the advancement of treatment process and inclusion of new laws, it has become a common pattern for the doctors to take the consent and recommendations of the patients. The Mental Capacity Act 2005 has made it a compulsory act to consider the opinions of the patients who are able to take decision by their own selves. At the same time, it is also the responsibility of the hospital authorities to consider the consent of the legal authorities on behalf of the patients, who do not have the mental capacity to take decisions. However, the doctors are liable to be take care of the fact that condition of the care users in emergencies when they are nervous and panicked should not be considered as their incapacity.
However, the findings of a study have indicated that the considering the opinions of the care users have stood has a major obstacle in the execution of the duties of the doctors. The empowerment of the patients related to possessing the complete knowledge about their treatment process has proved to be disadvantageous. This is because of the fact that the patients intervene in an unlimited manner, which has proved to be disastrous for the doctors. In many scenarios, the doctors are compelled to undertake the activities or the treatment process even though it is not beneficial for the care users. Hence, this has resulted in the wrong procedure followed for treating the patients.
Maintaining distinctions with patients regarding disclosing information: The most important duty of the doctor is the maintenance of distinctions with patients related to disclosing information. This helps in regulating the excessive intervention of the care users related to the treatment process, which can stand as an obstacle for the doctors to execute their duties. Moreover, it also enables the doctors to abide by the rules that have been emphasised in Data Protection Act and execute the activities in legal manner. Hence, this not only helps in enhancing the reputation of doctors but also of the health care setting as well.
Maintaining law of consent before every treatment: The doctors are also liable to consider the opinions of the care users. With the introduction of European Convention of Human Rights, this has become necessary to follow. Hence, this can helps the doctors to win the confidence of the care users. Moreover, the recommendations that are provided by the patients can help in proceeding with the treatment that is able to satisfy the care users and hence help the doctors in the easy execution of the treatment process. Moreover, it can also be noticed that when the customers are satisfied with the process that is executed by the doctors, it is likely to fetch results that are more effective.
Executing decisions solely taken by expert medical practitioners: The doctors can also focus on the fact that decisions, which are abiding by the approval of medical practitioners, are solely executed. This can help the caregivers to follow a more systematic and appropriate treatment process of the care users, which is likely to yield results that are more effective. Sat the same time, taking the consent of the legal authority of the care users can also helps in winning the trust of the care users and safeguarding the rights of the care users. Hence, this can help in executing the medical activities by abiding the medical laws that exist in the concerned country and at the same time reduce of the interventions of the care users in the treatment process.
From the above analysis, it is clear that patients should be given certain scope where the decision of the doctors will be analysed by them and then they might reach a conclusion that they might find proper to them. On the other hand, trusting the doctors is also important because they can only give the best advice to the patient. However, in today are scenario, as it is well understood that people are more educated than before and the various guidelines and legislations as given by the European union. Moreover, there has been involvement of a large amount of money in the treatment procedure of an individual. Thus, it becomes quite evident for the patients or their family to ask for the detail information about the treatment that is to be carried on.
It is true that doctors do understand what they have to do to treat a patient and they also try to give their best to their clients. Sometimes, it becomes mandatory for the patients to rely on the doctors and leave everything to the professional expert. At this time, the doctors are treated equivalent to some messiah and a lifesaver. In those situations, everything has to be kept to the professionals. Again, giving a proper consent to the patient before conducting any kind of treatment is legal and justified. The patients should have the full control over making any kind of decision regarding their choice of operation. Moreover, if the operation of the treatment does not get success by any means then the complete failure goes to the doctor and the patients claim any kind of legal suit against the doctors. For such instances, it is better to inform the patients about the matter and then proceed with the treatment.
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