INFORMED CONSENT
Informed consent is concerned with how much information a doctor needs to provide a patient to avoid
claims in battery and negligence. It is not a legal consent in itself - we are looking at the issue of
information disclosure in the context of negligence primarily but also in relation to battery claims as well.
Patients need to be informed because;
Doctors can avoid legal liability;
It is respectful of the patient's autonomy; and
It enhances healthcare.
This however can create problems where;
There is not enough time;
Too much information can make some people anxious and cloud decisions;
Medical information is particularly complex;
Patients don't actually want to be informed.
For consent to be valid;
The patient must be competent.
Consent must be voluntary.
Consent must be informed (information regarding the nature of the touching).
A DEFENCE TO BATTERY
The general principle of battery derives from Collins v Wilcock in which Goff LJ provided a definition of
battery. There a certain requirements for the tort of battery;
Intention to commit the act (not the harm).
Direct application of force.
Actionable per se (special damage does not have to be proven, it's about protecting a person's
right to self-determination).
D is liable for all direct consequences flowing from the tort (whether foreseeable or not).
Consent of a competent patient is a defence to battery and is crucial for those in the medical
profession. The key question is how much information is sufficient for the consent to be considered
'real'.
For consent to be rendered valid and constitute a valid defence for battery, the patient need only be
informed generally about the treatment - not being told about the finer details of that treatment will not
negate the validity of consent.
Chatterson v Gerson [1981]
Chatterton had a post-operative scar which resulted in chronic pain. She decided to have an operation
blocking her sensory nerve. Her doctor did not inform her of the risk of losing sensation in her limbs as
a result of the operation. She lost sensation in one of her legs. Chatterton sued under the tort of battery
on the basis that her consent was not obtained due to the lack of disclosure.
Bristow J held that 'once the patient is informed in broad terms of the nature [and purpose] of the
procedure which is intended, and gives her consent, that consent is real, and the cause of action on
which to base a claim for failure to go into risks and implications is negligence, not trespass.'
(emphasis added). Not being told of a risk is not enough to invalidate consent.
, Broadly speaking, there are 3 types of battery that can be identified from the medical case law. These
cases show, in a variety of forms, a severe breakdown in the relationship between a doctor and patient.
As Bristow J stated in Chatterson, justice requires that in order to vitiate the reality of consent there
must be a greater failure of communication between doctor and patient than that involved in a breach
of duty if the claim is based on negligence...once the patient is informed in broad terms of the nature of
the procedure which is intended, and gives her consent, that consent is real.
DOCTOR'S MISTAKEN BELIEF AS TO A VALID CONSENT
An example would be the correct procedure on the wrong body part or the correct procedure on the
wrong patient. In these scenarios, through some error the doctor genuinely believes there is consent.
This would amount to a battery.
The second operation in Chatterson v Gerson was performed without any explanation - either as to its
purpose or its nature. The defendant had assumed that the patient's consent to the first operation
carried over to the second. It was irrelevant that there was no malice on the part of the doctor.
Schweizer v Central Hospital (1974)
Patient consent to an operation on his foot but due to a mix up his spine was operated on.
Despite it being an honest mix up, the claim of battery succeeded. The patient's right to self-
determination had been interfered with.
FRAUD AND MISREPRESENTATION
The fraud or misrepresentation must relate specifically to the nature of the procedure. Consent
obtained by fraud is not a valid consent. There are some fine distinctions to be drawn as shown below.
R v Richardson [1999]
Patients received dental treatment from the defendant without being informed that the defendant was
suspended from the General Dental Council's Register. The patients stated they would not have
consented had they known of the dentist's suspension.
Held that the patients consent was in fact valid. There was no fraud as to the nature of the procedure -
the fraud related to the defendant's right to practice Dentistry. The patient was still informed in broad
terms of the nature of the procedure.
Appleton v Garrett [1996]
Dentist carried out wholly unnecessary treatment upon the claimant. The defendant dentist had
deliberately withheld information about the necessity of the treatment in the knowledge that they would
not have consented to the treatment had they been aware of the facts and therefore the defendant
would lose out on financial gains.
Held that a battery had occurred. The consent had not been informed in broad terms as the fraud was
in relation to the nature of the procedure.
R v Flattery (1877)
Claimant consented to sexual intercourse in the belief that the procedure was a surgical operation due
to the information provided by the defendant.
Held that consent was not valid and therefore a battery had occurred. Consent had been vitiated by
fraud as to the nature and quality of the act.
Informed consent is concerned with how much information a doctor needs to provide a patient to avoid
claims in battery and negligence. It is not a legal consent in itself - we are looking at the issue of
information disclosure in the context of negligence primarily but also in relation to battery claims as well.
Patients need to be informed because;
Doctors can avoid legal liability;
It is respectful of the patient's autonomy; and
It enhances healthcare.
This however can create problems where;
There is not enough time;
Too much information can make some people anxious and cloud decisions;
Medical information is particularly complex;
Patients don't actually want to be informed.
For consent to be valid;
The patient must be competent.
Consent must be voluntary.
Consent must be informed (information regarding the nature of the touching).
A DEFENCE TO BATTERY
The general principle of battery derives from Collins v Wilcock in which Goff LJ provided a definition of
battery. There a certain requirements for the tort of battery;
Intention to commit the act (not the harm).
Direct application of force.
Actionable per se (special damage does not have to be proven, it's about protecting a person's
right to self-determination).
D is liable for all direct consequences flowing from the tort (whether foreseeable or not).
Consent of a competent patient is a defence to battery and is crucial for those in the medical
profession. The key question is how much information is sufficient for the consent to be considered
'real'.
For consent to be rendered valid and constitute a valid defence for battery, the patient need only be
informed generally about the treatment - not being told about the finer details of that treatment will not
negate the validity of consent.
Chatterson v Gerson [1981]
Chatterton had a post-operative scar which resulted in chronic pain. She decided to have an operation
blocking her sensory nerve. Her doctor did not inform her of the risk of losing sensation in her limbs as
a result of the operation. She lost sensation in one of her legs. Chatterton sued under the tort of battery
on the basis that her consent was not obtained due to the lack of disclosure.
Bristow J held that 'once the patient is informed in broad terms of the nature [and purpose] of the
procedure which is intended, and gives her consent, that consent is real, and the cause of action on
which to base a claim for failure to go into risks and implications is negligence, not trespass.'
(emphasis added). Not being told of a risk is not enough to invalidate consent.
, Broadly speaking, there are 3 types of battery that can be identified from the medical case law. These
cases show, in a variety of forms, a severe breakdown in the relationship between a doctor and patient.
As Bristow J stated in Chatterson, justice requires that in order to vitiate the reality of consent there
must be a greater failure of communication between doctor and patient than that involved in a breach
of duty if the claim is based on negligence...once the patient is informed in broad terms of the nature of
the procedure which is intended, and gives her consent, that consent is real.
DOCTOR'S MISTAKEN BELIEF AS TO A VALID CONSENT
An example would be the correct procedure on the wrong body part or the correct procedure on the
wrong patient. In these scenarios, through some error the doctor genuinely believes there is consent.
This would amount to a battery.
The second operation in Chatterson v Gerson was performed without any explanation - either as to its
purpose or its nature. The defendant had assumed that the patient's consent to the first operation
carried over to the second. It was irrelevant that there was no malice on the part of the doctor.
Schweizer v Central Hospital (1974)
Patient consent to an operation on his foot but due to a mix up his spine was operated on.
Despite it being an honest mix up, the claim of battery succeeded. The patient's right to self-
determination had been interfered with.
FRAUD AND MISREPRESENTATION
The fraud or misrepresentation must relate specifically to the nature of the procedure. Consent
obtained by fraud is not a valid consent. There are some fine distinctions to be drawn as shown below.
R v Richardson [1999]
Patients received dental treatment from the defendant without being informed that the defendant was
suspended from the General Dental Council's Register. The patients stated they would not have
consented had they known of the dentist's suspension.
Held that the patients consent was in fact valid. There was no fraud as to the nature of the procedure -
the fraud related to the defendant's right to practice Dentistry. The patient was still informed in broad
terms of the nature of the procedure.
Appleton v Garrett [1996]
Dentist carried out wholly unnecessary treatment upon the claimant. The defendant dentist had
deliberately withheld information about the necessity of the treatment in the knowledge that they would
not have consented to the treatment had they been aware of the facts and therefore the defendant
would lose out on financial gains.
Held that a battery had occurred. The consent had not been informed in broad terms as the fraud was
in relation to the nature of the procedure.
R v Flattery (1877)
Claimant consented to sexual intercourse in the belief that the procedure was a surgical operation due
to the information provided by the defendant.
Held that consent was not valid and therefore a battery had occurred. Consent had been vitiated by
fraud as to the nature and quality of the act.
