A clinical judgment will involve the exchange of information between healthcare professional and patient.

Patients who are compos mentis have the right to refuse treatment, even where that is clinically indicated. This is an exercise of autonomy or bodily integrity which  is frequently emphasised by the courts. A medical intervention carried out without the consent of a patient may amount to a criminal offence, with the relevant healthcare professional being charged with battery. It may also give rise to a claim in damages. It is a key consideration, therefore.

Two elements need to be considered. Firstly, the question arises as to whether the patient was capable of giving consent (for example, a patient under a disability or a minor). Secondly, if capable of consenting, whether sufficient information has been given to the patient to consent. This is referred to as informed consent.

The law relating to the capacity of minors or persons under a disability to consent to treatment will be dealt with in a separate post. Turning for the moment to the issue of what information should be given to a patient, the courts in Ireland have yet to give a definitive decision as to whether they endorse the case law in England and Wales, as set out in Montgomery v Lanarkshire Health Board [2015] UKSC 11. Nevertheless, the courts have given some useful guidance to healthcare professionals.

In Fitzpatrick –v- White[2007] IESC 51, the Supreme Court rejected :

“what might be described as the “doctor centred” approach (which) had been the law for many years in England and Wales …”

Preferring instead the formulation of the duty expressed in Pearce v. United Bristol Healthcare NHS Trust [1999] 48 BMLR 118, in which Lord Woolfe MR stated:-

“In a case where it is being alleged that a plaintiff is being deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt….Obviously, the doctor, in determining what to tell a patient, has to take into account all of the relevant considerations, which include the ability of the patient to comprehend what he has to say to him and the state of the patient at the particular time, both from the physical point of view and an emotional point of view. There can often be situations where a course different from the normal has to be employed. However, where there is what can realistically be called “significant risk”, then, in the ordinary event, as I have already indicated, the patient is entitled to be informed of that risk.”

As to what the content of a warning should be, the Court (in the same case) said :

if there is a significant risk which would affect the judgement of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk. This is still an onerous test.”

As to the time at which the warning should be given, it was pointed out :

There are obvious reasons why, in the context of elective surgery, a warning given only shortly before an operation is undesirable. A patient may be stressed, medicated or in pain in this period and may be less likely for one or more of these reasons to make a calm and reasoned decision in such circumstances.”

To be continued …