The complexities of Information and Consent in Health


The rule in medicine is that for a patient to agree to any medical treatment or care the patient has to be well-informed. The doctors or the nurses in charge of providing care should not withhold any information that could change the mind of the patient. As this could be grounds for a negligence lawsuit. For example Rodgers V Whitaker, this is a case where Maree Lynette Whitaker who had been blind in one eye for many years consulted a doctor that is specialised in eyes.

Ms Whitaker was advised that operation on the injured eye would improve not only her appearance but also her sight.  Mr Rodger did not mention all the possible risks of the surgery, one of them being sympathetic ophthalmia. This is kind of inflammation of both eyes that develops due to trauma in one eye; this can lead to blindness. Unfortunately, the patient did not improve but suffered inflammation in the other eye which led to blindness. Ms Whitaker sued Mr Rodgers alleging negligence, the court ruled in favour of Ms Whitaker stating that the defendant was in negligence in that he did not tell Ms Whitaker some critical information that could have changed her mind with regards to the operation.

Even though Mr Rodgers argued that the reason he did not tell the plaintiff of the condition, because the condition was extremely rare and that only 1 in a 1000 people in a similar situation develop the disease. Ms Whitaker won the case she was able to prove that a lack of information was negligent on Mr Rodgers part in that, had she been told of all the risks she would not have gone ahead with the surgery (Loane Skene 2002).

Sidaway V Governors of the Bethlehem general hospital. Mr Sidaway went for surgery to repair her cervical vertebrae; she was not told that there is a 1 to 2% chance that such a procedure can lead to paralysis. Unfortunately, Ms Sidaway suffered paralysis and later sued the hospital for negligence alleging that the hospital had a duty of care to he told the plaintiff of the full ramification of the procedure she was about to do.

Again here the court rules in favour of the plaintiff stating that the hospital had a duty of care to inform the patient of all the risk that comes with the procedure. Therapeutic privileges, in this case, can apply because the patient was of a sound mind and able to make her own decision (Oxbridge Notes 1985).

Smith V the Auckland general hospital “Mr Smith went to the hospital for an autograph; the primary purpose of that particular autograph was to X-ray Mr Smith. But to do that they had to insert a catheter in the femoral artery leading to the aorta and then injected a dye. The procedure has a low-level risk of developing an atheroma plaque dislodging which may result in gangrene of the foot. Which Mr Smith was not told even though she asked. Mr Smith lost the leg as a result of the gangrene that developed from the procedure.

When the case was brought before the court, the judge ruled in favour of Mr Smith stating the hospital were negligent in that the doctor did not take due care to answer the question of the patient. If a person acting as a professional is asked a question, he or she must know that the person asking the question is relying on the professional’s advice to make the decision (Wallace 1995).

When dealing with the subject of consent, it is essential we look at the relationship Information and consent. Informed consent means that the individual to take the responsibility of what has been agreed to, based on the advice or the information they have been given. Once accepted and authorised it is assumed that a person knows the full ramification of what has just agreed to. The rule in negligence proceedings when dealing with consent is that an individual has to prove to the court that the lack of information affected their decision.

For example, the Cover V South Australia, “Ms Cover went to the hospital for surgery on her eye because she suffered from thyroid eye disease. After the operation was finished, she was told by the doctor that he had to operate on both eyes because he did not know which eye had the thyroid disease. She also was not informed of the risks that come with the surgery which were; blindness, entropion and trichiasis, unfortunately, she developed all three.

When the case was brought before the court, the judge had to consider whether the hospital negligent for not telling the plaintiff about the risks. The court ruled in favour of the hospital stating that even though the patient was able to prove that the hospital was negligent for the most part, she was not able to convince the court that she would have changed her mind if she had known all the facts (Ridley 2006).

Battery with regards to informed consent, Battery in law means the use of force against another person which results in the assault of a patient. In a medical setting it can be interpreted as the giving of care or be touching a patient without their consent, this can be the administering of medication without the person knowing or helping them with the activities of daily living without their permission (Smith 1983).

Battery and assault are much easier to prove than negligence in that all that the patient has to do is to show that there was an intentional touching of the patient by the health caregiver. In an emergency, there is an assumption of consent being given which allows caregivers to intervene. In a medical setting, the situation is deemed emergent if with medical intervention and the individual will die or the lack of medical intervention will lead to person serious injury to the person’s health.

There are some cases where the law and the principles of consent collide. For example, Malette v. Shulman “Ms Mallet was involved in a car accident and was taken to the hospital unconscious, she was carrying a card stating that she is a Jehovah’s witness and refused blood transfusion should be given. She later deteriorated fast due to the bleeding from the facial injuries she sustained in the accident; the doctor decided to give her blood transfusion to prevent shock and other complications”.

Mrs Malette later filed a lawsuit on the charges of the battery which as stated above is the invasion of the person body without the consent. The doctors urged that consent does not apply in emergency doctrine, the courts ruled in favour of the plaintiff because her medical alert card was a sign that the plaintiff did not want any blood transfusion (Barney Snelderman 1990).

The right to refuse care only applies to people who have the mental capacity to do so, it does not apply to children and individuals with some mental retardation and is unaware of what is happening. In the case where there is a conflict between caregivers and the patient or the patient family, the hospital can apply for a guardianship order from the Supreme Court if the hospital feels that the guardian is not acting in the best interest of the patient (Government of South Australia 2012).


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